The following is an excerpt from Combating Terrorism With Intelligence: The Normative Debate in Israel by Daphna Sharfman and Ephraim Kahana.
The normative and legal struggles in a country facing almost constant terrorism constitute the elements of the core debate in defining the morals and normative aspirations of Israeli society and maintaining the nation’s heterogenic character as manifested in its political culture. Nevertheless, the Israeli Supreme Court has managed to define and protect the young democracy’s normative standing since its inception, and it continues to do so even under the political and public criticisms expressed especially by right-of-center groups.
The Court’s leading voice was its president, Aharon Barak, who discussed the problem of a democracy facing terrorism over the years. He noted that terrorism creates much tension among the different elements of the state: While the elected representatives may wish to take all effective steps to fight terrorism, even if harmful to human rights, the democratic pillar of human rights may encourage the protection of the rights of every individual, including the terrorist, even at the cost of undermining the fight against terrorism. But even if struggling with this tension is primarily the task of the legislature and the executive, which are accountable to the people, they must justify their decision to the judges who are judicially responsible for protecting the principles of democracy, as Judge Barak put it:
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. . . judges meet their supreme test in situations of war and terrorism . . . If we fail our role in times of war and terrorism, we will be unable to fulfill our role in times of peace and security . . . 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.
As to the centrality of judicial intervention, much debated in Israel, Barak wrote that the protection of human rights would be bankrupt if, during armed conflicts, the courts delayed the review of executive branch behavior until the period of emergency had ended. Instead, the judicial ruling must convey guidance and direction in the specific case before it.
In Israel, petitions from suspected terrorists reach the HCJ in real time, while the events being reviewed are still taking place, as in the question of interrogation by the security services. In general, as long as the security measures are applied within the alleged framework of the ‘‘zone of reasonableness,’’ no basis is present for judicial intervention. But ‘‘security considerations’’ are not magic words; the Court must be convinced that the security consideration was the dominant one and the measures used were proportional to the terrorist act. Justice Barak described the process:
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 . . .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.
Barak viewed arguments against judicial review from both the left and right as unacceptable. Judicial review of the legality of the war on terrorism might make waging the conflict more difficult in the short term, but it could fortify society in the long term. Barak referred to his dissenting opinion in the case of the pardon given to the heads of the Security Service (ISA) by Israel’s then-President Chaim Herzog in the 1984 Bus 300 affair. Barak emphasized the centrality of the rule of law and its power over everyone, including the state’s security apparatus:
There is no security without law. The rule of law is a component of national security . . . 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.
Under a continuous state of emergency since its establishment, Israel is always a target of terrorist organizations. The need to deal with security emergencies led the HCJ to realize the importance of preserving fundamental democratic principles in times of war. Over the years, it has handed down rulings concerning security issues that restricted the force that the executive branch could apply, including interrogation methods used against security detainees or administrative detention.
In Israel, as in other democracies, the ISA’s role in obtaining intelligence in the struggle against terrorism is far from being a neutral, professional issue. Society and its institutions are involved, and they largely direct that sensitive process. The legal tension is always there. As Michael Ignatieff has pointed out, the secret services and the defense forces regularly conduct a controversial ‘‘relentless and brutal campaign’’ against terrorists, but inside the country, the campaign must remain under democratic authorization and judicial review:
Generals publicly question its effectiveness, pilots express moral and tactical qualms about certain operations, columnists insist these operations make Israel less, not more, secure, and so on, yet through it all Israeli democracy is surviving the ordeal