Table of Contents
The Supreme Court and the Problem of Terrorism
by Aharon Barak, President of the Israel Supreme Court
To access the following courts rulings, please download the attached pdf file (see link above).
The GSS’s Methods of Interrogation
* HCJ 5100/94 Public Committee Against Torture in Israel v. The State of Israel
* HCJ 2006/97 Janimat v. OC Central Command
Warfare and Humanitarian Matters
* HCJ 2936/02 Physicians for Human Rights v. The Commander of IDF Forces in the West Bank
* HCJ 3114/02 Barakeh v. The Minister of Defense
* HCJ 3451/02 Almandi v. The Minister of Defense
* HCJ 3278/02 The Center for the Defense of the Individual v. The Commander of IDF Forces in the West Bank
* HCJ 3239/02 Marab v. The Commander of IDF Forces in the West Bank
* HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank
Recent Important Judgments: IDF Operations in Rafah; Israel’s Security Fence
* HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in the Gaza Strip [The Rafah Case]
* HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel [The Fence Case]
The terrible events of September 11, 2001 highlighted the dangers of terrorism with painful clarity. They sparked a declaration of war on terrorists and the conditions that allow them to flourish. Though the fight against terrorism is not new, it has turned into a proactive international effort without precedent.
There exists a consensus on the need to fight terror, but there is still much controversy regarding the best way to conduct this war. This is no surprise since the price of war is high. Fighting against terrorism in an effective manner entails finding the right balance between security and public interests, on one hand, and the need to safeguard human rights and basic freedoms, on the other. This is a very complex process.
Unfortunately, this dilemma is not new to the Israeli legal system. Since its birth, the State of Israel has been the target of significant threats to its existence which have been manifested in many ways, including terrorism. In this sense the Israeli experience in the legal-judicial field, as well as other fields, is relevant to all those interested in the war on terrorism.
The citizens of Israel have had to live for many years with the reality of suicide terrorism, where bombers blow themselves up in city centers, to an intensity and frequency unprecedented elsewhere around the world. The immediate challenge faced by Israel’s security system is, on one hand, the urgent need to act in order to halt the attacks, this being part of the basic responsibility of every state to ensure the security of its citizens. On the other hand, the state must carry out these operations pursuant to the law and within the framework of the rule of law in a democratic state.
The goal of this booklet is to present examples of how the Israeli Supreme Court has dealt with this dilemma. The booklet presents judgments in which the Supreme Court was required to balance security needs and the public interest of fighting terrorism against human rights, humanitarian obligations and other important values. The Court’s approach to such cases sheds light on the dilemmas involved in finding this balance. Should the Court even descend to the level of such conflicts and address these types of questions? The fundamental answer of the Israeli legal system is “yes.”
Supreme Court President Aharon Barak expressed this succinctly when he ruled that the war on terror should not be waged outside of the law, but rather within the framework of the law and using the means that the law affords the security forces. This is the analytical basis of the Israeli judicial experience of the war on terror, several expressions of which are found in this booklet. This basis is explained in an article (see below) written by President Barak which deals with the Supreme Court and the problem of terrorism. Several judgments handed down by the Supreme Court which demonstrate the practical application of this concept follow. In all of these judgments the Supreme Court had to find a balance between the security needs in Israel, the West Bank and Gaza Strip, the human rights of those suspected of terrorist activities and the human rights and interests of the civilian population.
Each judgment presented in this booklet is preceded by an introduction explaining the context in which the judgment was handed down and its principal points.
Before moving on to the judgments we must first briefly explain the essential character of the judicial review exercised by the Israeli Supreme Court over the activities of the security forces fighting terrorism.
All the judgments brought in this booklet were handed down by the High Court of Justice. The High Court of Justice is one of the forms assumed by the Israeli Supreme Court. It reviews the activities of public authorities, including the security forces, to ensure they are in line with the law (see section 15(4)(2) of the Basic Law: The Judiciary). This judicial review is exercised as the first instance. This means that the High Court of Justice is the first court to address the case and it is not a court of appeal. It is also the last instance. There is no appeal on its rulings since it is the Supreme Court, the highest in the land.
In general the panel is composed of three justices, but for petitions of particular importance a larger panel of an odd number of justices may preside (to date, up to 15). The High Court of Justice need not adjudicate every dispute brought before it. It has the discretion to establish locus standi (who has the right initiate a proceeding) and to decide whether a dispute is justiciable (if it is an appropriate case for the Court to address). Over the years the Court has demonstrated a flexible approach regarding locus standi and justiciable doctrines. It has been willing to hear petitions brought by public organizations with no personal interests in the dispute which clearly set out the principle issues of the dispute. The Court has also frequently shown readiness to adjudicate military and security cases. This flexibility is at the basis of the numerous judicial decisions of the Court centering on the war on terror.
The High Court of Justice is ever busy adjudicating petitions lodged against public bodies operating in the State of Israel. But it also hears petitions brought by residents of the West Bank and Gaza Strip against the activities of the Israel Defense Forces and other security bodies in these areas, as well as petitions brought by public organizations (with no personal interests) against these operations. Its authority to preside over these cases stems from the view that the security forces operating in the West Bank and Gaza Strip are also public bodies which are subject to the law. This policy, which was crystallized after the Six Day War of 1967, allows Palestinian residents to petition the Israeli Supreme Court and subjects the operations of Israel in the territories to judicial review. Most of the judgments presented in this booklet are an expression of this judicial review.
The Supreme Court and the Problem of Terrorism
by Aharon Barak
President of the Israel Supreme Court
(from Foreword: A Judge on Judging – The Role of a Supreme Court in a Democracy by Aharon Barak – President of the Israel Supreme Court. Originally printed in Harvard Law Review, November, 2002.)
A. Terrorism and Democracy
Terrorism plagues many countries. The United States realized its devastating power on September 11, 2001. Other countries, such as Israel, have suffered from terrorism for a long time. [FN1] While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts:
We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties. [FN2]
Terrorism creates much tension between the essential components of democracy. One pillar of democracy – the rule of the people through its elected representatives – may encourage taking all steps effective in fighting terrorism, even if they are harmful to human rights. The other pillar of democracy – human rights – may encourage protecting the rights of every individual, including the terrorists, even at the cost of undermining the fight against terrorism. Struggling with this tension is primarily the task of the legislature and the executive, which are accountable to the people. But true democratic accountability cannot be satisfied by the judgment of the people alone. The legislature must also justify its decisions to judges, who are responsible for protecting the principles of democracy.
We, the judges in modern democracies, are responsible for protecting democracy both from terrorism and from the means the state wants to use to fight terrorism. Of course, matters of daily life constantly test judges’ ability to protect democracy, but judges meet their supreme test in situations of war and terrorism. The protection of every individual’s human rights is a much more formidable duty in times of war and terrorism than in times of peace and security. If we fail in our role in times of war and terrorism, we will be unable to fulfill our role in times of peace and security. It is a myth to think that we can maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. It is self-deception to believe that a judicial ruling will be valid only during wartime and that things will change in peacetime. The line between war and peace is thin – what one person calls peace, another calls war. In any case, it is impossible to maintain this distinction over the long term. Since its founding, Israel has faced a security threat. As a Justice of the Israeli Supreme Court, how should I view my role in protecting human rights given this situation? I must take human rights seriously during times of both peace and conflict. I must not make do with the mistaken belief that, at the end of the conflict, I can turn back the clock.
Furthermore, a mistake by the judiciary in times of war and terrorism is worse than a mistake of the legislature and the executive in times of war and terrorism. The reason is that the judiciary’s mistakes will remain with the democracy when the threat of terrorism passes, and will be entrenched in the case law of the court as a magnet for the development of new and problematic laws. This is not so with a mistake of the other branches, which can be erased through legislation or executive action and usually forgotten. In his dissent in Korematsu v. United States, [FN3] Justice Jackson expressed this distinction well:
[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty…. A military order, however unconstitutional, is not apt to last longer than the military emergency…. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative
power of its own, and all that it creates will be in its own image. [FN4]
Indeed, we judges must act coherently and consistently. A wrong decision in a time of war and terrorism plots a point that will cause the judicial graph to deviate after the crisis passes. This is not the case with the other branches of state, whose actions during a time of war and terrorism may amount to an episode that does not affect decisions made during times of peace and security.
Moreover, democracy ensures us, as judges, independence and impartiality. Because of our unaccountability, it strengthens us against the fluctuations of public opinion. The real test of this independence and impartiality comes in situations of war and terrorism. The significance of our unaccountability becomes clear in these situations, when public opinion is more likely to be unanimous. Precisely in these times, we judges must hold fast to fundamental principles and values; we must embrace our supreme responsibility to protect democracy and the constitution. Lord Atkins’s remarks on the subject of administrative detention during World War II aptly describe these duties of a judge. In a minority opinion in November 1941, he wrote:
In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges… stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. [FN5]
Admittedly, the struggle against terrorism turns our democracy into a “defensive democracy” or a “fighting democracy.” Nonetheless, this defense and this fight must not deprive our regime of its democratic character. Defensive democracy: yes; uncontrolled democracy: no. The judges in the highest court of the modern democracy must act in this spirit. We have tried to do so in Israel, and I will now discuss several fundamental views that have guided us in these efforts.
B. In Battle, the Laws Are Not Silent
There is a well-known saying that when the cannons speak, the Muses are silent. Cicero expressed a similar idea when he said that “inter arma silent leges” (in battle, the laws are silent). [FN6] These statements are regrettable; I hope they do not reflect our democracies today. [FN7] I know they do not reflect the way things should be. Every battle a country wages—against terrorism or any other enemy—is done according to rules and laws. There is always law—domestic or international—according to which the state must act. And the law needs Muses, never more urgently than when the cannons speak. We need laws most in times of war. As Harold Koh said, referring to the September 11, 2001 attacks:
In the days since, I have been struck by how many Americans—and how many lawyers—seem to have concluded that, somehow, the destruction of four planes and three buildings has taken us back to a state of nature in which there are no laws or rules. In fact, over the years, we have developed an elaborate system of domestic and international laws, institutions, regimes, and decision-making procedures precisely so that they will be consulted and obeyed, not ignored, at a time like this.
During the Gulf War, Iraq fired missiles at Israel. Israel feared chemical and biological warfare as well, so the government distributed gas masks. A suit was brought against the military commander, arguing that he distributed gas masks unequally in the West Bank. We accepted the petitioner’s argument. In my opinion, I wrote:
When the cannons speak, the Muses are silent. But even when the cannons speak, the military commander must uphold the law. The power of society to stand up against its enemies is based on its recognition that it is fighting for values that deserve protection. The rule of law is one of these values. [FN8]
This opinion sparked criticism; some argued that the Supreme Court had improperly interfered in Israel’s struggle against Iraq. I believe that this criticism is unjustified. We did not intervene in military considerations, for which the expertise and responsibility lie with the executive. Rather, we intervened in considerations of equality, for which the expertise and responsibility rest with the judiciary. Indeed, the struggle against terrorism is not conducted outside the law, but within the law, using tools that the law makes available to a democratic state. Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law. Justice Haim Cohen expressed this idea well more than twenty years ago, when he said:
What distinguishes the war of the State from the war of its enemies is that the State fights while upholding the law, whereas its enemies fight while violating the law. The moral strength and objective justness of the Government’s war depend entirely on upholding the laws of the State: by conceding this strength and this justness, the Government serves the purposes of the enemy. Moral weapons are no less important than any other weapon, and perhaps more important. There is no weapon more moral than the rule of law. Everyone who ought to know should be aware that the rule of law in Israel will never succumb to the state’s enemies. [FN9]
Indeed, the war against terrorism is the war of a law-abiding nation and its law-abiding citizens against lawbreakers. It is, therefore, not merely a war of the state against its enemies; it is also a war of the Law against its enemies. My recent opinion in the case involving the alleged food shortage among the besieged Palestinians in the Church of the Nativity in Bethlehem addressed this role of the rule of law as a primary actor in matters of terrorism. We considered the petition and applied the relevant rules of international law. In doing so, I said:
Israel is in a difficult war against rampant terrorism. It is acting on the basis of its right to self-defense…. This armed conflict is not undertaken in a normative vacuum. It is undertaken according to the rules of international law, which establish the principles and rules for armed conflicts. The saying that “when the cannons speak, the Muses are silent” is incorrect…. The reason underlying this approach is not merely pragmatic, the result of political and normative reality. The reason underlying this approach is much deeper. It is an expression of the difference between a democratic State fighting for its survival and the battle of terrorists rising up against it. The State is fighting for the law and for the law’s protection. The terrorists are fighting against and in defiance of the law. The armed conflict against terrorism is an armed conflict of the law against those who seek to destroy it…. But in addition, the State of Israel is a State whose values are Jewish and democratic. Here we have established a State that preserves law, that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular. Between these two there are harmony and accord, not conflict and estrangement. [FN10]
Therefore, as Justice Michael Cheshin has written: “[W]e will not falter in our efforts for the rule of law. We have sworn by our oath to dispense justice, to be the servant of the law, and we will be faithful to our oath and to ourselves. Even when the trumpets of war sound, the rule of law will make its voice heard.” [FN11]
Discussing democracy’s war on terrorism, Justice Kirby has rightly pointed out that it must be waged while “[k]eeping proportion. Adhering to the ways of democracy. Upholding constitutionalism and the rule of law. Defending, even under assault, and even for the feared and hated, the legal rights of suspects.”
C. The Balance Between National Security and Freedom of the Individual
Democratic nations should conduct the struggle against terrorism with a proper balance between two conflicting values and principles. On one hand, we must consider the values and principles relating to the security of the state and its citizens. Human rights are not a stage for national destruction; they
cannot justify undermining national security in every case and in all circumstances. Similarly, a constitution is not a prescription for national suicide. [FN12] But on the other hand, we must consider the values and principles relating to human dignity and freedom. National security cannot justify undermining human rights in every case and under all circumstances. National security does not grant an unlimited license to harm the individual. Democratic nations must find a balance between these conflicting values and principles. Neither side can rule alone. In a case that dealt with the legality of administrative detention, I said:
There is no avoiding—in a democracy aspiring to freedom and security—a balance between freedom and dignity on the one hand, and security on the other. Human rights must not become a tool for denying security to the public and the State. A balance is required—a sensitive and difficult balance—between the freedom and dignity of the individual, and national security and public security. [FN13]
This synthesis between national security and individual freedom reflects the rich and fertile character of the principle of rule of law in particular, and of democracy in general. It is within the framework of this approach that the courts in Israel have made their decisions concerning the state’s armed conflict against the terrorism that plagues it. Our Supreme Court—which in Israel serves as the court of first instance for complaints against the executive branch—opens its doors to anyone with a complaint about the activities of a public authority. Even if the terrorist activities occur outside Israel or the terrorists are being detained outside Israel, we recognize our authority to hear the issue. We have not used the Act of State doctrine or non-justiciability under these circumstances. We consider these issues on their merits. Nor do we require injury in fact as a standing requirement; we recognize the standing of anyone to challenge the act. In the context of terrorism, the Israeli Supreme Court has ruled on petitions concerning the power of the state to arrest suspected terrorists and the conditions of their confinement. It has ruled on petitions concerning the rights of suspected terrorists to legal representation and the means by which they may be interrogated. These hearings sometimes
take place just hours after the alleged incident about which the suspected terrorist complains. When necessary, the Court issues a preliminary injunction preventing the state from continuing the interrogation until the Court can determine that it is being conducted legally. In one case, the state sought to deport 400 suspected terrorists to Lebanon. Human rights organizations petitioned us. I was the Justice on call at the time. Late that night, I issued an interim order enjoining the deportation. At the time, the deportees were in automobiles en route to Lebanon. The order immediately halted thedeportation. Only after a hearing held in our Court throughout the night that included comprehensive argumentation, including testimony by the Army’s Chief of Staff, did we invalidate the deportation order. [FN14] We ruled that the state breached its obligation to grant the deportees the right to a hearing before deporting them, and we ordered a post factum right to a hearing.
In all these decisions—and there have been hundreds of this kind—we have recognized the power of the state to protect its security and the security of its citizens on the one hand; on the other hand, we have emphasized that the rights of every individual must be preserved, including the rights of the individual suspected of being a terrorist. The balancing point between the conflicting values and principles is not constant, but rather differs from case to case and from issue to issue. The damage to national security caused by a given terrorist act and the nation’s response to that act affect the way the freedom and dignity of the individual are protected. Thus, for example, when the response to terrorism was the destruction of the terrorists’ homes, we discussed the need to act proportionately. We concluded that only when human life has been lost is it permissible to destroy the buildings where the terrorists lived, and even then the goal of the destruction may not be collective punishment (which is forbidden in an area under military occupation). [FN15] Such destruction may be used only for preventive purposes, and even then the owner of the building to be destroyed has a right to a prior hearing unless such a hearing would interfere with current military activity. [FN16] Obviously, there is no right to a hearing in the middle of a military operation. But when the time and place permit—and there is no danger of interference with security forces that are fighting terrorism— this right should be honored as much as possible. [FN17]
When it was necessary to use administrative detention against terrorists, we interpreted the relevant legislation to determine that the purpose of administrative detention laws is twofold: “On one hand, protecting national security; on the other hand, protecting the dignity and freedom of every person.” [FN18] We added that “protection of national security is a social interest that every State strives to satisfy. Within this framework, democratic freedom-loving countries recognize the ‘institution’ of administrative detention.” [FN19] We also concluded that “defending and protecting … freedom and dignity extend even to the freedom and dignity of someone whom the state wishes to confine in administrative detention.” [FN20] Against this background, we held:
[I]t is possible to allow—in a democratic state that aspires to freedom and security—the administrative detention of a person who is regarded personally as a danger to national security. But this possibility should not be extended to the detention of a person who is not regarded personally as any danger to national security, and who is merely a “bargaining chip.” [FN21]
The war against terrorism also requires the interrogation of terrorists, which must be conducted according to the ordinary rules of interrogation. Physical force must not be used in these interrogations; specifically, the persons being interrogated must not be tortured. [FN22]
Any balance that is struck between security and freedom will impose certain limitations on both. A proper balance will not be achieved when human rights are fully protected, as if there were no terrorism. Similarly, a proper balance will not be achieved when national security is afforded full protection, as if there were no human rights. The balance and compromise are the price of democracy.
Only a strong, safe, and stable democracy may afford and protect human rights, and only a democracy built on the foundations of human rights can have security. It follows that the balance between security and freedom does not reflect the lack of a clear position. On the contrary, the proper balance is the result of a clear position that recognizes both the need for security and the need for human rights. I discussed this in a difficult case addressing whether the state may forcibly relocate residents of an occupied territory who pose a threat to state security: “A delicate and sensitive balance
is necessary. That is the price of democracy. It is expensive but worthwhile. It strengthens the state. It gives it a reason to its fight.” [FN23]
When a court rules on the balance between security and freedom during times of terrorist threats, it often encounters complaints from all sides. The supporters of human rights argue that the court gives too much protection to security and too little to human rights. The supporters of security argue the converse. Frequently, those making these arguments only read the judicial conclusions without considering the judicial reasoning that seeks to reach a proper balance among the conflicting values and principles. None of this should intimidate the judge; he must rule according to his best understanding and conscience. [FN24]
D. The Scope of Judicial Intervention
Judicial review of the war against terrorism by its nature raises questions regarding the timing and scope of judicial intervention. There is no theoretical difference between applying judicial review before or after the war on terrorism. In practice, however, as Chief Justice Rehnquist has correctly noted, the timing of judicial intervention affects its content. As he stated, “courts are more prone to uphold wartime claims of civil liberties after the war is over.” [FN25] In light of this recognition, Chief Justice Rehnquist goes on to ask whether it would be better to abstain from judicial adjudication during warfare. [FN26] The answer, from my point of view—and, I am sure, that of Chief Justice Rehnquist—is clear: I will adjudicate a question when it is presented to me. I will not defer it until the war on terror is over, because the fate of a human being may hang in the balance. The protection of human rights would be bankrupt if, during armed conflict, courts—consciously or unconsciously—decided to review the executive branch’s behavior only after the period of emergency has ended. Furthermore, the decision should not rest on issuing general declarations about the balance of human rights and theneed for security. Rather, the judicial ruling must impart guidance and direction in the specific case before it. As Justice Brennan correctly noted: “abstract principles announcing the applicability of civil liberties during times of war and crisis are ineffectual when a war or other crisis comes along unlessthe principles are fleshed out by a detailed jurisprudence explaining how those civil liberties will be sustained against particularized national security concerns.” [FN27]
From a judicial review perspective, the situation in Israel is unique. Petitions from suspected terrorists reach the Supreme Court—which has exclusive jurisdiction over such matters—in real time. The judicial adjudication may take place not only during combat, but also often while the events being reviewed are still taking place. For example, the question whether the General Security Service may use extraordinary methods of interrogation (including what has been classified as torture) did not come before us in the context of a criminal case in which we had to rule, ex post, on the admissibility of a suspected terrorist’s confession. [FN28] Rather, the question arose at the beginning of his interrogation. The suspect’s lawyer came before us at the start of the interrogation and claimed, on the basis of past experience, that the General Security Service would torture his client. When we summoned the state’s representative hours later, he confirmed the lawyer’s allegation but nonetheless argued that the interrogation was legal. We had to make a decision in real time. How must we, as Supreme Court justices in a democracy, approach such an issue?
I believe that the court should not adopt a position on the efficient security measures for fighting against terrorism: “this court will not take any stance on the manner of conducting the combat.” [FN29] For example, in a petition filed by citizens who were in the precincts of the Church of the Nativity when it was besieged by the Army—a petition that was filed while negotiations were being held between the Government of Israel and the Palestinian Authority regarding a solution to the problem—I wrote that “this court is not conducting the negotiations and is not taking part in them. The national responsibility in this affair lies with the executive and those acting on its behalf.” [FN30] Indeed, the efficiency of security measures is within the power of the other branches of government. As long as these branches are acting within the framework of the “zone of reasonableness,” there is no basis for judicial intervention. Often the executive will argue that “security considerations” led to a government action and request that the court be satisfied with this argument. Such a request should not be granted.
“Security considerations” are not magic words. The court must insist on learning the specific security considerations that prompted the government’s actions. The court must also be persuaded that these considerations actually motivated the government’s actions and were not merely pretextual. Finally, the court must be convinced that the security measures adopted were the available measures least damaging to human rights. Indeed, in several of the many security measure cases that the Supreme Court has heard, senior army commanders and heads of the security services testified. Only if we were convinced, in the total balance, that the security consideration was the dominant one, and that the security measure was proportionate to the terrorist act, did we dismiss the challenge against the action. [FN31] We should be neither naïve nor cynical. We should analyze objectively the evidence before us. In a case dealing with review, under the Geneva Convention, of the state’s decision to assign the residence of Arabs from the West Bank to the Gaza Strip, I noted that:
In exercising judicial review… we do not make ourselves into security experts. We do not replace the military commander’s security considerations with our own. We take no position on the way security issues are handled. Our job is to maintain boundaries, and to guarantee the existence of conditions that restrict the military commander’s discretion… because of the important security aspects in which the commander’s decision is grounded. We do not, however, replace the commander’s discretion with our own. We insist upon the legality of the military commander’s exercise of discretion and that it fall into the range of reasonableness, determined by the relevant legal norms applicable to the issue. [FN32]
Is it proper for judges to review the legality of the war on terrorism? Many, on both extremes of the political spectrum, argue that the courts should not become involved in these matters. On one side, critics argue that judicial review undermines security; on the other side, critics argue that judicial review gives undeserved legitimacy to government actions against terrorism. Both arguments are unacceptable. Judicial review of the legality of the war on terrorism may make this war harder in the short term, but it also fortifies and strengthens the people in the long term. The rule of law is a central element in national security. As I wrote in the case of the pretrial pardon given to the heads of the General Security Service:
There is no security without law. The rule of law is a component of national security. Security requires us to find proper tools for interrogation. Otherwise, the General Security Service will be unable to fulfill its mission. The strength of the Service lies in the public’s confidence in it. Its strength lies in the court’s confidence in it. If security considerations tip the scales, neither the public nor the court will have confidence in the Security Service and the lawfulness of its interrogations. Without this confidence, the branches of the state cannot function. This is true of public confidence in the courts, and it true of public confidence in the other branches of state. [FN33]
I concluded my opinion in that case with the following historical analogy:
It is said that there was a dispute between King James I and Justice Coke. The question was whether the king could take matters in the province of the judiciary into his own hands and decide them himself. At first, Justice Coke tried to persuade the king that judging required expertise that the king did not have. The king was not convinced. Then Justice Coke rose and said: “Quod rex non debet sub homine, sed sub deo et lege.” The king is not subject to man, but subject to God and the law. Let it be so. [FN34]
The security considerations entertained by the branches of the state are subject to “God and the law.” In the final analysis, this subservience strengthens democracy. It makes the struggle against terrorism worthwhile. To the extent that the legitimacy of the court means that the acts of the state are lawful, the court fulfills an important role. Public confidence in the branches of the state is vital for democracy. Both when the state wins and when it loses, the rule of law and democracy benefit. The main effect of the judicial decision occurs not in the individual instance that comes before it, but by determining the general norms according to which governmental authorities act and establishing the deterrent effect that these norms will have. The test of the rule of law arises not merely in the few cases brought before the court, but also in the many potential cases that are not brought before it, since governmental authorities are aware of the court’s rulings and act accordingly. The argument that judicial review necessarily validates the governmental action does not take into account the nature of judicial review. In hearing a case, the court does not examine the wisdom of the war against terrorism, but only the legality of the acts taken in furtherance of the war. The court does not ask itself if it would have adopted the same security measures if it were responsible for security. Instead, the court asks if a reasonable person responsible for security would be prudent to adopt the security measures that were adopted. Thus, the court does not express agreement or disagreement with the means adopted, but rather fulfills its role of reviewing the constitutionality and legality of the executive acts.
Naturally, one must not go from one extreme to the other. One must recognize that the court will not solve the problem of terrorism. It is a problem to be addressed by the other branches of government. The court’s role is to ensure the constitutionality and legality of the fight against terrorism. It must ensure that the war against terrorism is conducted within the framework of the law. This is the court’s contribution to democracy’s struggle to survive. In my opinion, it is an important contribution, one that aptly reflects the judicial role in a democracy. Realizing this rule during a fight against terrorism is difficult. We cannot and would not want to escape from this difficulty, as I noted in one case:
The decision has been laid before us, and we must stand by it. We are obligated to preserve the legality of the regime even in difficult decisions. Even when the artillery booms and the Muses are silent, law exists and acts and decides what is permitted and what is forbidden, what is legal and what is illegal. And when law exists, courts also exist to adjudicate what is permitted and what is forbidden, what is legal and what is illegal. Some of the public will applaud our decision; others will oppose it. Perhaps neither side will have read our reasoning. We have done our part, however. That is our role and our obligations as judges. [FN35]
[FN1]. For a comparison of the American experience and the Israeli experience, see William J. Brennan, Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Time of Security Crises, 18 Isr. Yearbook Hum. Rts. 11 (1988).
[FN2]. H.C. 5100/94, Pub. Comm. Against Torture in Isr. v. Gov’t of Israel, 53(4) P.D. 817, 845.
[FN3]. 323 U.S. 214 (1944).
[FN4]. Id. at 245-46 (Jackson, J., dissenting).
[FN5]. Liversidge v. Anderson, 3 All E.R. 338, 361 (1941) (Atkins, L.J., minority opinion).
[FN6]. Cicero, Pro Milone 16 (N.H. Watts trans., Harvard Univ. Press, 5th ed. 1972).
[FN7]. But cf. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime 224
(1998) (arguing that Cicero’s approach reflects reality).
[FN8]. H.C. 168/91, Morcos v. Minister of Def., 45(1) P.D. 467, 470-71.
[FN9]. H.C. 320/80, Kwasama v. Minister of Def., 5(3) P.D. 113, 132.
[FN10]. H.C. 3451/02, Almadani v. IDF Commander in Judea & Samaria, 56(3) P.D. 30, 34-35.
[FN10]. H.C. 3451/02, Almadani v. IDF Commander in Judea & Samaria, 56(3) P.D. 30, 34-35.
[FN11]. H.C. 1730/96, Sabiah v. IDF Commander in Judea & Samaria, 50(1) P.D. 353, 369.
[FN12]. See C.A. 2/84, Neiman v. Chairman of Cent. Elections Comm. for Eleventh Knesset,
39(2) P.D. 225, 310; cf. Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackon, J., dissenting).
[FN13]. Cr.A. 7048/97, Anonymous v. Minister of Def., 54(1) P.D. 721, 741.
[FN14]. See H.C. 5973/92, Ass’n for Civil Rights in Isr. v. Minister of Def., 47(1) P.D. 267.
[FN15]. See H.C. 5510/92, Turkeman v. Minister of Def., 48(1) P.D. 217. Harsh criticism has
been leveled at this opinion and others like it. See David Kretzmer, The Occupation of Justice:
The Supreme Court of Israel and the Occupied Territories 160-61 (2002)
[FN16]. See H.C. 6696/02, Adal Sado Amar v. IDF Commander in the W. Bank, http://www.court.gov.il.
[FN17]. See id.
[FN18]. Anonymous, 54(1) P.D. at 740.
[FN21]. Id. at 741.
[FN22]. H.C. 5100/94, Pub. Comm. Against Torture in Isr. v. Gov’t of Israel, 53(4) P.D. 817, 835.
[FN23]. H.C. 7015/02, Ajuri v. IDF Commander in the W. Bank, http://www.court.gov.il.
[FN24]. See H.C. 428/86, Barzilai v. Gov’t of Israel, 40(3) P.D. 505, 585 (Barak, J., dissenting).
[FN25]. Rehnquist, supra note 519, at 222.
[FN27]. Brennan, supra note 513, at 19.
[FN28]. See H.C. 4054/95, Pub. Comm’n Against Torture in Isr. v. Gov’t of Israel, 43(4) P.D. 817.
[FN29]. H.C. 3114/02, Barakeh v. Minister of Def., 56(3) P.D. 11, 16.
[FN30]. H.C. 3451/02, Almadani v. IDF Commander in Judea & Samaria, 56(3) P.D. 30, 36.
[FN31]. In Secretary of State for the Home Department v. Rehman, No. UKHL47, 2001 WL
1135176 (H.L. Oct. 11, 2001) (U.K.), Lord Hoffman noted that “the judicial arm of government [needs] to respect the decisions of ministers of the Crown on the question of whether support
for terrorist activities in a foreign country constitutes a threat to national security.” I hope the meaning of these comments is limited to the general principle that a court determines not the means of fighting terrorism but rather the lawfulness of the means employed.
[FN32]. H.C. 7015/02, Ajuri v. IDF Commander in the W. Bank, http://www.court.gov.il.
[FN33]. H.C. 428/86, Barzilai v. Gov’t of Israel, 40(3) P.D. 505, 622 (citation omitted).
[FN34]. Id. at 623.
[FN35]. H.C. 2161/96, Rabbi Said Sharif v. Military Commander, 50 (4) P.D. 485, 491.