The Supreme Court
and the Problem of Terrorism
(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:
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:
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:
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:
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:
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:
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:
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
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:
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:
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:
I concluded my opinion in that case with the following historical analogy:
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:
[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).
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Sources: Israeli Foreign Ministry