The Role of a Supreme Court in
a Democracy and the Fight against Terrorism-II
by Justice Aharon Barak, ISRAEL
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."
(Concluded)
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. |
