Commentary: What U.S. can learn from Israel's judicial review for detainees

Special to McClatchy NewspapersMarch 28, 2011 

In an interdependent world threatened by transnational terrorism, Israel, as much as any other nation, has a vital stake in ensuring that the United States pursues its wars within the bounds of the law. Israel's own experiences can also serve as a helpful guide to the issues the United States faces.

This is especially true with respect to a hotly-contested topic now before U.S. courts: whether detainees captured by American forces in Afghanistan should have access to independent judicial review of their detention. Based on the Israeli experience — and mine, as a 20-year veteran of the Israeli Defense Forces (IDF) Judge Advocate General’s Corps — the answer should be an emphatic yes.

From its founding in 1948 to the present day, Israel has been at war with one or more nations, has faced mortal threats to its national survival, and has been the target of countless acts of terrorism against its civilian population, with devastating losses of life.

Even in the midst of ongoing hostilities and warfare, under Israeli law, all detainees, regardless of nationality or the circumstances or location of their seizure, have a right of access to counsel and to independent courts empowered to review the basis for their detention and, when warranted, to order their release. This is true even when judicial review takes place amidst continuing terrorist attacks or large-scale Israeli military operations. Although Israeli security officials make the initial detention assessment, the crucial judgments — including the weight of the evidence, or whether detainees and their counsel have access to classified evidence or adequate substitutes — are all matters for a judge.

I was — and remain — convinced that Israel’s robust judicial review is both necessary to maintain the rule of law and makes for effective counterterrorism policy.

As a former military commander, I know that a robust and independent court review process helps to ensure that we are properly detaining the right people, and not those wrongly picked up in sweeps, or who are otherwise innocent. This ensures the legitimacy of military and counterterrorism operations.

That is why the Israeli Supreme Court applies as its guiding principle the truth that, even in combat, “there is no more potent weapon than the rule of law.” The essence of any democratic society is that it does not subject people to prolonged imprisonment without a fair process.

In stark contrast to Israeli law and practice, last year, the federal Court of Appeals in Washington, D.C. ruled that U.S. detainees held at the Bagram detention facility in Afghanistan did not have habeas corpus rights to challenge their detention in U.S. courts. According to the Court of Appeals, the determinative factor was that allowing detainees held in a battle zone to challenge their detention in U.S. courts would pose “practical obstacles” for the U.S. military.

As a result, the U.S. military now has unreviewable and unfettered discretion to make Bagram detention decisions using a process plagued by rampant over classification and other flaws — including, significantly, denial of access to counsel — that make it virtually impossible for a detainee to confront and challenge the government’s evidence.

Several Bagram detainees are now pressing the courts for judicial review, arguing that the “practical obstacles” cited by the Court of Appeals do not exist or can be mitigated.

Last week, along with several other Israeli military law experts, I signed an amicus brief in support of a habeas case brought by the American Civil Liberties Union on behalf of Zia-ur-Rahman, one of these detainees. We argue that the Israeli experience shows that judicial review is not only practical, but indispensable to legitimacy.

For example, in operations on the West Bank in May of 2002, the Israel Defense Forces seized nearly 7000 suspected enemy combatants, quickly processed and released over 5000, and gave the remaining 1600 suspects access to defense counsel and to independent courts within a matter of weeks -- a delay that was nevertheless controversial within Israel and resulted in a judicial challenge.

In a decision that gave full consideration to the practical constraints of warfare and the obstacles presented by limited resources and manpower, the Israeli Supreme Court found that “A society is measured, among other things, by the relative weight it attributes to personal liberty. This weight must express itself not only in pleasant remarks and legal literature, but also in the budget. . . . Society must be ready to pay a price to protect human rights.”

As a result of the Court’s decision, detainees now have a judicial hearing within eight days of detention, without any reported difficulties on the part of the IDF.

The United States, with vastly greater resources than Israel and the same obligation to reconcile liberty and security, can surely give the far fewer detainees at Bagram — approximately 1,500 — their day in court too.

ABOUT THE WRITER

Amos N. Guiora is a professor of law at the University of Utah's S.J. Quinney College of Law. He is also author of Freedom from Religion: Rights and National Security. He can be reached by email at amos.guiora@law.utah.edu.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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