Judicial Review and Administrative Detention

[OJ Ed. – Professor Guiora had initially submitted the following post in two parts. They appear below in sequence, with the second half responding specifically to Ken Anderson’s question.]

The ‘limits of power’ is essential to the ‘rule of law’. While perhaps an obvious motto or slogan its application in times of crises is no mean feat. FDR’s decision to interne Japanese-Americans in the aftermath of Pearl Harbor and the Supreme Court’s decision in Korematsu are but the best examples of what I define as ‘panic responses’. The ‘Palmer Raids’, Prize Cases and Presidential Order establishing the Military Commissions are similar examples. What is disheartening in all four is that while the executive engaged in excess neither the Congress nor Supreme Court engaged or challenged the President. Checks and balances fell by the wayside; Justice Jackson’s famous warning of an ‘unfettered executive’ went unheeded.

As the three branches of government move into the post Bush era they would do well to recall not only Justice Jackson’s words but also those of the former President (Chief Justice) of the Israeli Supreme Court, Aharon Barak, ‘national security is not a magical phrase’. Those two phrases articulating the same concept are essential to understanding how administrative detention can and should be implemented.

The fundamental requirements are caution and skepticism; caution by the executive and skepticism by the Congress and Courts. Both are essential to the rule of law and ensuring that ‘by all means necessary’ will be relegated to Hollywood rather than adopted by the Administration as a viable counterterrorism policy. Easier said than done in the immediate aftermath of a terrorist attack; I know for I have been a direct participant in decision making under such circumstances. The dilemma of the decision maker is truly put to the test; the public and media are clamoring for a response (however defined) and politicians demand action (however defined) ensuring the voter that if they were in office either the attack would not have occurred or their response would be so powerful and effective as to literally guarantee no future attacks. Precisely because of these pressures the Supreme Court must engage in active judicial review.

The administrative detention paradigm with its inherent prejudice (individual cannot confront his accuser) requires rigorous judicial review, perhaps more than other operational counterterrorism measures. When I was mandated with recommending to commanders whether to administratively detain Palestinian’s the High Court of Justice’s future review of the recommendation/decision was a critical component of the internal (IDF/intelligence community) process. After all, the Court would ask why a particular recommendation was made and would intervene if not convinced the decision met a reasonableness standard. While reasonableness may seem broad/vague it was sufficiently defined/contoured to provide decision makers guidelines regarding the scope/range of what measures could be implemented. Active judicial review of the administrative detention meant that the Court was consistently examining whether the executive correctly applied the reasonableness test to operational decisions. That is, the review was not vague; it was concrete in that the Court wanted to be satisfied that the executive understood reasonableness was an abstract concept but rather a term with clear parameters and therefore, judicially imposed limits.

Unlike late Chief Justice Rehnquist’s philosophy regarding the Supreme Court’s role in times of armed conflict the Barak’s model was a fundamental lack of deference to the executive (IDF). While commander’s felt the HCJ had intervened in their natural bailiwick, Barak was convinced of the need to ensure that operational counterterrorism measures were reasonable. The only way to do so was to engage the executive; otherwise disregard for the rule of law emanating from judicial deference was inevitable. That is, only by directly hearing from the commander or his representative was the Court able to decide –case by case—whether administrative detention had been reasonably applied based on available intelligence information and whether it could be declassified.

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I begin my final post (as guest blogger) where I began Monday: by thanking my friends at OJ for so generously inviting me to comment on the question of administrative detention. In planning the week’s posts I intended to use the last day to discuss, if not apply, the Israeli experience to the American paradigm. Ken Anderson’s exceptionally thoughtful comment—which reflects an uncanny understanding of Israeli society–goes to the core of comparatavism.

While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship (with thanks to Ken for his gracious comment re my scholarship/policy writing) I am fully aware of its limitations. That said, I am unequivocally of the opinion that nation states can and must learn from each other. While judicial, constitutional and societal paradigms are unique and distinct it is essential that like-minded civil, democratic states undertake the critical effort to understand how similar countries address similar issues. In the field of counterterrorism (like others) no one nation state has ‘all the answers’, therefore learning from others is essential.

Under former President (Chief Justice) Meir Shamgar and particularly under former President (Chief Justice) Aharon Barak the Israeli Supreme Court was the nation’s dominant institution, matched –perhaps–only by the Israel Defense Forces (IDF). Barak’s extraordinarily broad definition of standing and justiciability literally meant that every alleged grievance committed by the State (including future, proposed action) was petitionable to the Court sitting as the High Court of Justice. As I have discussed during the week, military commanders beginning in the 1990’s were increasingly forced to take into consideration the Court’s real-time intervention. The dilemma of the decision maker–complicated enough in operational counterterrorism without external intervention–was indeed made more complicated precisely because the Court imposed its ‘reasonableness’ test on commanders. The burden was on the commander to show that a particular operational decision met that test; if not, the Court would not hesitate to rule that the commander’s decision violated the rights of the petitioner.

I have advocated in my scholarship the absolute importance of active judicial review. The basis for this deeply held belief is the seat that I had at the counterterrorism table. That is, I have been a direct participant (not witness) to extraordinarily complicated dilemmas and understand the tension between excess of power and limits of power. That tension and the need to respond justifies active judicial review. The legislative branch –as historically documented–is incapable/unwilling to restrain the executive (in any country, including the U.S. and Israel); the only operational response to Justice Jackson’s ‘unfettered executive’ concern is an active, interventionist Court.

That said, as Ken correctly highlights, the Israeli paradigm is not a mirror image of the American paradigm. Barak’s theory of literally unlimited scope of judicial review stands in direct contrast with the ‘cases and controversies’ clause of Article III of the US Constitution. As a result of Chief Justice Marshall’s decision in Marbury v Madison, the Supreme Court became an equal partner in the government; in the Israeli paradigm according to Barak’s theory –I suggest–the Court (particularly when sitting as the High Court of Justice) is first amongst equals.

Is this system ‘translatable’ into the American paradigm? According to Marbury and a narrow reading of ‘cases and controversies’, the majority of scholars would suggest it is not. On the other hand, the historical U.S. overreaction to perceived or actual threats suggests that the U.S. Supreme Court (in lieu of a Congress that genuinely engages in ‘checks and balances’) adopt a fundamentally different approach than it has historically. Perhaps Boumediene is sign of things to come; needless to say, I fully agree with Judge Bates and only hope that future decisions will reflect his holding.

Ken Anderson is of course right that there are fundamental differences between Israel and America–size and immediacy of the threat are but prime examples. However, precisely because both are vibrant democracies the principles of checks and balances and separation of powers must be more than empty platitudes. They are what protect us from executive excess in both cultures. The role of the Court is to constantly and unblinkingly engage the executive. Whether Barak’s theory is too interventionist is a matter of lively academic debate; while I would suggest it was a proper response in reining in the executive I well understand those who are critical. On the other hand former Chief Justice Rehnquist’s theory regarding the role of the Court in times of armed conflict is, I respectfully suggest, deeply flawed and ultimately harmful to American principles and values.

The ultimate role, I believe, of a ‘comparatist’ is to examine different regimes–in the understanding that profound differences exist–with the intention of identifying strengths from distinct paradigms and to cobble together a functional model for addressing similar issues. With respect to the issue of administrative detention–the focus of my posts this week–I do believe that the Israeli model (albeit problematic as I have argued) is adaptable in the US, conditioned on legislation and subject to active judicial review.

Final thought: many thanks to Ken for truly ‘pushing the issue’; that was my fundamental hope with respect to the postings this week. Needless to say, I look forward to additional discussion and again thank my friends at OJ for their gracious invitation.