The Role of a Supreme Court In a Democracy and the Fight Against Terrorism

By Justice Aharon Barak

I see my role as a judge of a Supreme Court in a democracy as that of protecting the constitution and democracy. We cannot take the continued existence of a democracy for granted. This is certainly the case for new democracies, but it is also true of the old and well‑established ones. The approach that 'it cannot happen to us' can no longer be accepted. Anything can happen. If democracy was perverted and destroyed in the Germany of Kant, Beethoven and Goethe, it can happen anywhere. If we do not protect democracy, democracy will not protect us. I do not know if the Supreme Court judges in Germany could have prevented Hitler from coming to power in the 1930s. But I do know that one of the lessons of the Holocaust and of the Second World War is the need to have democratic constitutions and ensure that they are put into effect by Supreme Court judges whose main task is to protect democracy. It was this awareness, in the post‑World War Two era, which helped disseminate the idea of judicial review of legislative action and make human rights central. It led to the recognition of defensive democracy and even militant democracy. And it shaped my perspective that the main role of the Supreme Court judge in a democracy is to maintain and protect the constitution and democracy.

Everyone agrees that democracy means the rule of the people, acting through their representatives in the legislature. It is therefore essential to democracy that free elections are held periodically for the election of representatives on the basis of the political program proposed by them, and that they are accountable to the people, who can periodically replace them; hence the connection between democracy and legislative supremacy. However, real or substantive democracy, as opposed to merely formal democracy, is not satisfied by the presence of these conditions. Democracy has its own internal morality, based on the dignity and equality of all human beings. Thus, in addition to formal requirements, there must also be substantive requirements. These are reflected in the supremacy of certain underlying values and principles based on human dignity, equality, and tolerance. There is no (real) democracy without recognition of values and principles such as morality and justice. Above all, democracy cannot exist without the protection of individual human rights that the majority cannot take away by force of its numerical superiority. Real democracy is not just the law of rules and legislative supremacy. Democracy is a multi‑dimensional concept. It requires recognition of the power of the majority and limitations on the power of the majority. It is based on legislative supremacy and the supremacy of values, principles and human rights. When there is internal conflict, the formal and substantive elements of democracy must be balanced, to protect the essence of each of the aspects of democracy. In this balance, limitations are placed both on legislative supremacy and on the supremacy of human rights.

With that approach to my role as a judge I will turn to the role a Supreme Court should play when a democracy launches its war on terror. In doing so, I will refer to the Israeli Supreme Court's experience in dealing with that problem. My aim is not to discuss specific cases or specific results. My aim is to lay down a way of thinking about the judicial role in time of terror.

The Supreme Court and the Problem of Terrorism

1. Terrorism and democracy

Terrorism plagues many countries. The United States realized its devastating power on 11th September 2001. Other countries such as Israel have suffered from terrorism for a long time. While terrorism poses difficult questions for every country, it poses especially difficult questions for democracies, since not every effective means can be used. I discussed this in one case, in which the Supreme Court of Israel held that violence (torture) in the interrogation of a suspected terrorist is not permitted, even if using violence may save human life, by preventing impending terrorist acts:

"We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open to it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties."

Terrorism creates much tension between the 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 their impact on human rights is harmful. The other pillar of democracy ‑ human rights ‑ may encourage protecting the rights of every individual, including the terrorist, 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 the legislature and the executive must act within the Constitutional and legislative scheme ‑ a scheme which is subject to judicial review.

We judges in modem democracies have a major role to play in protecting democracy. We should protect it both from terrorism and from the means that the state wants to use to fight terrorism. Judges are, of course, tested daily in their protection of democracy, but judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war on 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 tranquility. It is a myth to think that it is possible to 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 we can limit our judicial rulings so that they will be valid only during wartime, and that we can decide that things will change in peace time. 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, We should assume that whatever we decide when terror is threatening our security will linger many years after the terror is over. Indeed, we judges must act with coherence and consistency. 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.

Moreover, democracy ensures us, as judges, independence. It strengthens us ‑ because of our political non‑accountability ‑ against the fluctuations in public opinion. The real test of this independence comes in situations of war and terrorism. The significance of our non ‑accountability becomes clear in these situations when the opinion of most of the public is unanimous. Precisely in these times of war and terrorism, we judges must hold fast to fundamental principles and values; we must embrace our supreme responsibility to protect democracy and the Constitution.

Admittedly, the struggle against terrorism turns our democracy into a 'defensive democracy' or even a 'fighting democracy'. Nonetheless, this defence and this fight must not deprive our regime of its democratic character. Defensive democracy ‑ yes; uncontrolled democracy ‑ no. Judges in the highest court of the modern democracy should act in this spirit.

2. In battle, the laws are not silent

There is a well‑known saying that when the cannons speak, the Muses are silent. A similar idea was expressed by Cicero when he said that inter arma silent leges (in battle, the laws are silent). These statements are regrettable. I hope they do not reflect the way things are. I am convinced they do not reflect the way things should be. Every battle a country wages ‑ against terrorism or against any other enemy ‑ must be carried out in accordance with rules and laws. On the international plain, these rules are of international law; on the domestic plain, they are the rules of domestic law. There is always law according to which the state must act. There are no black holes where there is no law. And the law needs Muses. We need the Muses most when the cannons speak. We need laws most in times of war. 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 in which the petitioner argued that the commander had 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 the recognition that it is fighting for values that deserve protection. The rule of law is one of these values."

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. They act against the law, by violating and trampling it. In its war against terrorism a democracy acts within the framework of the law and according to the law.

Indeed, the war against terrorism is a war of a law abiding nation and law abiding citizens against law breakers. It is, therefore, not merely a war of the state against its enemies; it is also a war of the law against its enemies.

3. The balance between national security and freedom of the individual

Democracies should conduct the struggle against terrorism with the proper balance between two conflicting values and principles. On the one hand, we must consider the values and principles relating to the security of the state and its citizens. Human rights cannot justify undermining national security in every case and in all circumstances. Human rights are not a stage for national destruction. The Constitution is not a suicide pact. As I stated in one case:

"A constitution is not a prescription for suicide, and civil rights are not an altar for national destruction (cf. the remarks of Justice Jackson in Terminiello v. Chicago). The laws of a people should be interpreted on the basis of the assumption that it wants to continue to exist. Civil rights derive from the existence of the state, and they should not be made into a spade with which to bury it."

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 in all circumstances. National security does not grant an unlimited license to harm the individual. Democracies must find a balance between these conflicting values and principles. Neither side can rule alone. Every balance that is made between security and freedom will impose certain limitations both on security and on freedom. A proper balance will not be achieved when human rights are fully protected, as if there was 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 exist with security. It follows that the balance between security and freedom does not reflect a lack of a clear position. On the contrary, the proper balance between security and freedom is the result of a clear position that recognizes the need for security and the need for human rights.

When I speak about the balance, I do not mean an external normative process that changes the scope of rights and the protection accorded them because of terror. I mean the ordinary process that takes place every day, when we address the relationship between individual rights and the needs of society. In this latter process, rights are not absolute. They may be limited to serve the needs of society. I do not have the right to shout "fire" in a crowded theater. The threat of terrorism increases the probability that serious damage may occur, which allows the right to be limited. But note: we do not conduct two systems of balancing, one for regular times, and an additional one under a threat of terrorism. There is one balancing process, and terrorism determines the physical conditions under which the balancing process is carried out.

When the court rules on the balance between security and freedom during times of terrorist threats, it often encounters complaints from both 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 that the court gives too much protection to human rights and too little to security. Frequently, the persons making these arguments only read the judicial conclusion without considering the judicial reasoning that seeks to draw a proper balance between the conflicting values and principles. None of this intimidates the judge. He must and does rule according to his best understanding and conscience.

Our point of departure in Israel has been that the doors of the Supreme Court ‑ which in Israel serves as court of first instance for complaints against the executive branch ‑ are open to anyone wishing to complain about the activities of a public authority. There are no black holes were there is judicial review.

The open door approach is expressed in a number of ways. First, it is very rare for the court to close its doors on grounds of nonjusticiability. At times the state may argue that most of its counter‑terrorism activities are beyond the reach of the judiciary because they take place outside the country, because they constitute an act of state, or because they are political in nature. All these arguments were made before us in the Israeli Supreme Court, and most of them were rejected when human rights were directly affected. Thus, we have ruled on petitions concerning the power of the state to arrest suspected terrorists and the conditions of their confinement. We have ruled on petitions concerning the rights of suspected terrorists to legal representation and the means by which they may be interrogated. Second, the court opens its doors to anyone claiming that civil rights have been violated. Everyone has standing. This is the general approach of the court in time of peace. We apply it also in time of teffor. Thus, civil rights associations often come to us in defence of human rights of those sectors of society that most people do not wish to protect ‑ including, of course, suspected terrorists. Third, our judgments regarding many of the terrorist cases are based on international law. Thus, for example, in a recent case the question was can the state relocate inhabitants of the West Bank to Gaza. We decided that it can be done to a person but only if there is convincing evidence that if the measure of assigned residence is not adopted, there is a reasonable likelihood that such person will present a real danger of harm to the security of the occupied territory. The state cannot assign residence of innocent persons. In deciding so, we relied exclusively on humanitarian provisions of the Fourth Geneva Convention dealing with assigned residence and internment.

In all these decisions ‑ and there have been hundreds of this kind ‑ we recognized, on the one hand, the power of the state to protect its security and the security of its citizens. On the other hand, we emphasized that the rights of every individual must be preserved, including those of the individual suspected of being a terrorist. The balancing point between the conflicting values and principles is not fixed. It differs from case to case, from issue to issue.

4. The scope of judicial intervention

Judicial review of the war against terrorism by its nature raises the question of the timing and scope of judicial intervention. There should not be a theoretical difference between applying judicial review at the time that the state is under terror threats or after the terror is gone. In practice, however, as Chief Justice Rehnquist 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." In the light of this recognition, Chief Justice Rehnquist goes on to ask whether or not it would be better to abstain from judicial adjudication during warfare. The answer, from my point of view ‑ and I am sure, also from the Chief Justice's point of view ‑ is clear. Both of us will adjudicate a question when it is presented to us. We will not defer it until the war on terror is over, because the fate of a democracy and human beings may hang in the balance. Protection of human rights would be bankrupt if, during combat, courts ‑ consciously or unconsciously ‑ decided to review the behaviour of the executive branch only after the period of emergency has ended.

From a judicial review point of view, the situation in Israel is unique. Petitions from suspected terrorists reach the Supreme Court ‑ which has exclusive jurisdiction on the matter ‑ in real time. The judicial adjudication takes place not only during combat, but often while the events being reviewed are taking place. For example, the question of 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, expost facto, on the admissibility of a suspected terrorist's confession. Rather, the question arose at the beginning of his interrogation. At the start of the interrogation, the suspect's lawyer came before us and claimed ‑ on the basis of his past experience ‑ that the General Security Service would use force against his client. We summoned the state's representative ‑ the same day or the next day ‑ and we heard arguments, and made a decision in real time.

Our basic premise is that the court should not adopt a position on the question of the efficient security measures for the war against terrorism. As I said in one case: "This court will not adopt any position about the manner of conducting the war". Indeed, the efficiency of the security measures is a matter that is in the proper jurisdiction of the other branches of government. As long as they are acting within the framework of the 'zone of reasonableness', there is no basis for judicial intervention.

Often the court will encounter the argument from the executive that security considerations led to an action of the government, followed by a request that the court be satisfied with this statement. Such a request should not be granted. 'Security considerations' are not magic words. The court must insist on hearing the specific security considerations that prompted the government's actions. The court must be persuaded that the security considerations actively motivated the government's action, and were not merely a pretext. 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 cases that the Supreme Court has heard, senior army commanders and heads of the security services testified before us. Only if we were convinced, that the security considerations were the dominant one, and that the security measure was proportionate, did we dismiss the challenge against the security action. In following Judge Hadassa Ben‑Ifto, President of the 1AJLJ, opens the Paris Conference, at the Sorbonne University this approach we should be neither nalve nor cynical. We should analyze the evidence before us objectively.

Is it proper for judges to review the legality of the fight on terrorism? Many argue that the court should not become involved in these matters. These arguments are heard from both extremes of the political spectrum. On one side, critics argue that judicial review undermines security; on the other side critics argue that judicial review gives legitimacy to actions of the government authorities in their war against terrorism. Both arguments are unacceptable. As to the argument that judicial review undermines security: judicial review of the legality of the war on terrorism may make the war against terrorism harder in the short term. However, it fortifies and strengthens the people in the long term. The rule of law is a central element in national security. In the final analysis, this subservience does not weaken democracy, but actually strengthens it. It makes the struggle against terrorism worthwhile ' With regard to considerations of legitimacy: to the extent that legitimacy by the court means that the acts of the state are lawful, the court fulfills its traditional role. Both when the state wins and when the state loses, the rule of law and democracy benefit: for it should be remembered that the main effect of the judicial decision does not occur in the individual instance that comes before it. Rather the main effect occurs in determining the general norms according to which the governmental authorities act, and establishing the deterrent effect that this norm 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 cases that are not brought before it, since government authorities are aware of the ruling of the court and act accordingly. The argument that the judicial review by the court somehow 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 security measures that were adopted, 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 with the means adopted but rather fulfills its role by judicial review of 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 role of the court 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 and not outside it. This is the courts' contribution to the struggle of democracy 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 war 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 ... 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 obligation as judges."

I regard myself as a judge who is sensitive to his role in a democracy. I take the tasks imposed on me ‑ protecting the constitution and democracy ‑ seriously. Despite the criticism often heard ‑ and it frequently descends to personal attacks and threats of violence from extremists ‑ I have continued on this path for many years. I hope that by doing so, I am serving my legal system properly. Indeed, as judges in the highest court, we must continue on our path according to our conscience. We, as judges, have a North Star that guides us ‑ the fundamental values and principles of constitutional democracy. A heavy responsibility rests on our shoulders. Even in hard times, we must remain true to ourselves. I discussed this in the opinion considering whether extraordinary methods of interrogation could be used against a terrorist in a 'ticking bomb' situation:

"Deciding these applications weighed heavily on this court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. Our apprehension that this decision will hamper the ability to properly deal with terrorists and terrorism, disturbs us. We are, however, judges. Our fellow‑citizens demand that we act according to the law. This is also the same standard that we set for ourselves. When we sit at trial, we stand on trial."

Justice Aharon Barak is President of the Supreme Court of Israel. This article was published in Justice No. 37 Winter 2003, a publication of the International Association of Jewish Lawyers and Jurists.