U.S. Supreme Court Justice Stephen Breyer says that Israeli judges have adopted “intermediate solutions” that acknowledge the security risks the country faces, and balance them against the nation’s commitment to democracy and individual freedom. U.S. Supreme Court Justice Stephen Breyer believes that the United States judicial system has a great deal to learn from studying the experience of Israeli courts in striking the delicate balance between fighting terrorism and human rights concerns.
The justice explained to an audience at Columbia Law School audience last week that Israeli judges have adopted what Breyer called “intermediate solutions” that acknowledge the security risks the country faces, and balance them against the nation’s commitment to democracy and individual freedom.
“There are many solutions that … solve nothing to everyone’s satisfaction but are not quite as restrictive of human rights as an extreme solution, nor as dangerous as some other extremes,” said Breyer, according to an AP report of his speech.
Breyer took as an example the way in which Israeli courts deal with terror defendants who might try to use visits from lawyers to communicate terror instructions from behind bars. While the security risk might make it impossible to allow such defendants to receive visits from any lawyer they choose are deemed too great, Breyer said, it is still possible to ensure that a defendant has a lawyer nonetheless, by giving them the option of choosing lawyers from an approved list.
“To have a lawyer not of your choice (is better) than none at all,” Breyer said.
Breyer said the Israeli experience weighing security and human rights is especially relevant to U.S. courts now – stopping short of specifically citing the traumatic experience of the September 11 attacks.
In response to Breyer’s comments, – Justice Dalia Dorner, a member of Israel’s Supreme Court said last week that she agreed that judges in Israel are experienced at balancing human rights and security considerations, and can serve as a model for jurists in other countries.
Israel “may indeed possess the most recent and comprehensive hands-on experience in confronting this difficult issue, which plagues a growing number of countries,” Dorner told law students at American University.
Dorner warned that governments, during emergencies, can focus almost exclusively on security. Courts, she said, become “the dominant guardian and protector of human rights.”
Without explicitly endorsing Israeli laws, Breyer praised the activist approach of Justice Aharon Barak, president of the Israeli Supreme Court, in grappling with these questions.
“He’s had to implement that kind of system, and when I read what he’s done in particular cases, I think, yes, we have something to learn that could prove to be topical,” Breyer said.
Barak has spoken frequently of the commitment of Israel’s judiciary to protecting the country’s democratic nature and cited the need for a balance between national security and freedom of the individual. “Human rights cannot justify undermining national security in every case and in all circumstance,” he said in a speech earlier this year at an international conference at Haifa University. “Human rights are not a stage for national destruction.” The other side of the coin, however is that “national security does not grant an unlimited license to harm the individual.”
Overall, Barak believes that in legal cases, “the court must be persuaded that the security considerations actively motivated the government’s action, and were not merely a pretext. It must be convinced that the security measures adopted were the available measures least damaging to human rights.”
He has stated firmly in the past that “terrorism does not justify the neglect of accepted legal norms.”
Referring to a case in which the Israeli Supreme Court held that the use of physical violence while interrogating a suspected terrorist is not permitted, even if using the violence may save lives, Barak stressed that while “judicial review of the legality of the war on terrorism may make the war against terrorism harder in the short term, it fortifies and strengthens the people in the long term.”
Judicial review by the Supreme Court has been the cornerstone of the Israeli attempt to safeguard the rights of its citizens. Over the years, the Supreme Court has developed the idea of fundamental rights through its case law, reviewing the activity of the branches of government to ensure that basic human rights were not unnecessarily infringed by security needs. In the process of judicial review, the Court attempts to strike the balance between the public interest and the fundamental human rights of the individual that Breyer referred to.
In Israel any person that claimed a violation of his freedoms or rights can petition to the Supreme Court. Often, its findings have not been popular.
“In exercising judicial review, our premise is that the law is not silent before the guns of war,” Supreme Court Justice Dorit Beinish explained. “Both international law and domestic Israeli law are relevant in times of emergency, and both of them provide for the exercise of judicial review even in times of war.”
“Indeed,” added Beinish, “for the State of Israel, compromising security may become a question of survival. But we must ensure that security arguments are not employed except when they are clearly necessary. Questions arising from Israel’s security situation have prompted our Court to adopt doctrinal controls that restrict the military’s ability to infringe on personal rights by simply reciting the mantra of ‘national security.’ We must ensure that even when human rights must be violated to protect our security, such violations are only proportional to, and measured by, their necessity.”