Monday, August 27, 2007

Israel for the Petitioners

Folks have started filing amicus briefs for the upcoming Guantanamo Bay habeas cases (Boumediene and Al Odah). Perhaps the most interesting one is this brief by several Israeli military experts, analogizing their own situation to the one faced by the United States. The summary of the argument is essentially: "We face a far more severe and serious terrorist threat than the US does, and yet we've never felt it necessary to eliminate due process or access to judicial review. What's your excuse?"

Via Balkinization.


Anonymous said...

Reality check: Israel has used administrative detention to hold hundreds of Palestinians captive without presenting formal charges. To Israel's credit there is some judicial oversight to that process, but the distinction ultimately comes down to having the "enemy combatant" designation made by a judge instead of the President. I wouldn't say the abuse of AD is anything like Guantanamo Bay, but it should give one pause before trumpeting the perceived humanity of the Israeli system. I don't think the US and Israeli approaches to fighting terrorism are as different as you'd like them to be. The fundamental problem of the state expanding its power by invoking and exaggerating the threat of terrorism is present in both cases.

David Schraub said...

But Matt, "Enemy combatant" is a legal designation. I have no objection to it being made by a judge, so long as its done in a fair and impartial setting. I'm not saying the Israeli system is perfect, but it does have significant advantages over the US system, one of which is that the courts have significant power to oversee (and intervene) the power of the state when fighting terror to keep it in check--a power which the Israeli court system has been surprisingly vigorous in exercising.

Here are the due process guarantees that amici say are available to all detainees (administrative, military, or otherwise):
"(1) the right to judicial review of the basis for their detention within no more than fourteen days of their seizure; (2) the right to have that review conducted by a judicial officer independent of the executive who is empowered, when the evidence warrants, to order their release; (3) the benefit of a standard that permits detention only when an individual poses a threat to State security and when no other means are available to neutralize that threat; (4) the right to have the government’s evidence subjected to a searching examination by the court; (5) the right to judicial review without having coerced testimony used against them; (6) the right to have a judge independently evaluate any claim that classified information offered to support detention cannot be disclosed to them; (7) the right of access to counsel within no more than thirty-four days; and (8) the right to have the basis for their detention independently reviewed every six months at a fully adversarial hearing. (at 9)"

These guarantees are limited until the adversarial hearings kick at six months, but they're still reasonably comprehensive and stretch well beyond what the US is currently offering.