(Note from Ken: OJ has been very pleased to have Amos Guiora guest-blogging with us last week, offering a series of posts on the question of administrative detention in Israel, and how its legal and security system address the many complex questions raised.  I raised to Amos a question about the role of the judiciary in Israel in counterterrorism operations, administrative detention, and other activities by security forces, to which he responded at the bottom of this post.  I put the same question to Gabriella Blum, professor at Harvard Law School, who writes back the following from Israel.  We are delighted to have Professor Blum’s comments, as well as those of Professor Guiora, on a question that is not entirely clear to non-Israelis, like me, who have never been or lived in Israel and have only passing acquaintance with its legal traditions, but which has considerable importance both for how Israel undertakes its security operations but – most interesting to me, at least, the extent and ways in which the United States can look comparatively at Israel in coming up with its own policies and institutions.  So, with our thanks, Professor Blum writes from Tel Aviv:)

The question of the comparative role of the judiciary in Israel and the United States is an important one with respect to counterterrorism. There are undoubtedly many similarities between the American and Israeli counterterrorism strategies, not least the determination by both countries that the fight against terrorism was a “war,” and not only in the colloquial sense ….

From the war paradigm stem obvious further similarities between the Israeli and American experiences: the use of military force against terrorists and terrorist targets (including the acceptance of some civilian casualties as legitimate collateral damage), targeted killings, and long-term detention to suspected terrorists without trial. All of these practices have been employed, in one form or another and in some degree or another, by both countries, long before the “war on terrorism,” but they have become much more widespread, public, and contested in their current use.  There are also striking differences between the two countries’ experience, some that stem from objective differences in the types of war each fights and some that are related to the role of law – and of courts – in both societies ….

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.

I’m delighted that Amos is guest-blogging with OJ this week, and I’ve read with great interest his posts – as well as his scholarship and policy writing – on administrative detention and related topics.  I have always wanted to ask the following, without a lot of knowledge, as I’ve never been to Israel and have only reading knowledge both of how the legal structures work but, more importantly for this question, how Israeli society works.  It’s this:

In important areas of security-terrorism policy, whether it be detention as Amos has been discussing in these posts, or targeted killing, as I’ve been discussing various places, and other things besides, the Israeli judiciary and the Israeli Supreme Court play a very important role.  It is a role that goes far beyond the role of the judiciary in American society, at least to the limited extent that I understand law and Israeli society, or the role of the American judiciary in counterterrorism and national security, even taking into account the increased role of the Federal courts in the counterterrorism and national security cases since 9/11.

What difference does this make, or should it make, in considering whether and the extent to which Israel’s approaches to detention, targeted killing, etc., can or should be adopted (adapted?) in the US?  Speaking without a personal knowledge of Israeli society, it appears to me from afar that the Israeli Supreme Court plays a societal role that is far wider and far deeper than the SCOTUS.  Juridical notions of separation of powers, the constitutional traditions of the political branches and foreign policy, the role of the commander in chief – all those things seem to me to raise important questions as to how far comparitivism can get on these issues.

There are other kinds of differences as well, beyond the question of the role of the judiciary in each society.  The proximity of the terrorism threat and a hostile adjacent population, the quasi-permanent nature of it in its impingement upon Israel as a polity and a society – one can argue that terrorism is a quasi-permanent fact of life for the United States and that in an age of globalized movement it is also always proximate.  But while worth bearing in mind, at least with my limited understanding of Israel, those differences are very real and very big, and they change the way in which a society responds to a threat that, because of those factors, impinges far more internally than, as with the United States at least up to this point, externally.

Europe likewise differs from the United States in these factors.  Much of the difference between European and US points of view on countering terrorism simply has to do with the strategic fact that for the US (and despite what will almost certainly be an increase in internal recruiting to jihadist terrorism inside the US), it remains largely external and hence amenable at least in part to war as a policy (whether successful or not in the actual event).  For Western Europe – Britain or France, the Netherlands or Denmark, for example – the terrorist threat is as much or more internal as anything.  Externally conducted war does not really address the threats these countries face; their lack of enthusiasm for it oftentimes carries a moralistic demeanor (as does the American response), but at bottom it arises from the strategic facts of the world and how they differ between the US and Europe.

And so too, it seems to me, with Israel.  The US situation is socially different, juridically and constitutionally different, and strategically different, starting with the geography of the struggle.  That does not render comparisons irrelevant or not useful – on the contrary, if only because differences can teach as much about policy as similarities – but it does suggest that they need to be evaluated on the basis of difference as well as similarity.  This, of course, I say in the abstract, never having been in Israel, so let me put the question to Amos: what are the differences, as he sees them, and how and to what extent do they condition the policy advice that one might give to the US?

There are two fundamental realities regarding the Israeli administrative detention process: 1) the individual (detainee) cannot confront his accuser; 2)  the individual (detainee) involved in planning terrorist actions is detained prior to carrying out an act of terrorism. Balancing these two is essential to lawful implementation of a measure, which by its very nature,  places the individual at an extraordinary disadvantage. When I was asked to review a file –whether as legal advisor or judge–the dilemma was the same: is the measure truly necessary or is there another mechanism available that balances the legitimate rights of the individual with the equally legitimate rights of the state?

[OJ ed. Note this post was submitted before comments to Mr. Guiora's first post were received.]

In Monday’s post, I presented the fundamental principles of administrative detention. Today, I will discuss the process and considerations when to apply the measure as developed over the course of years in Israel with respect to a specific individual. The measure is applied in the West Bank by order of the military commander (Israel has never annexed the West Bank) and in Israel proper by the Minister of Defense. In both, the decision is subject to judicial review (in the West Bank by two military courts and the Israeli Supreme Court; in Israel by the Tel Aviv District Court and by the Israeli Supreme Court).

As to the process: when the security forces (Israel Security Agency, ISA; formerly known as General Security Services) receive intelligence information suggesting a specific individual’s involvement in terrorism the following options are ‘on the table’:

1) Arrest for purposes of initiating a criminal law process (detention-interrogation-trial)
2) Arrest for purposes of administrative detention (detention-hearings)
3) Not arrest (monitor/surveillance).

If the ISA chooses to recommend the commander impose administrative detention on the individual, then the military commander’s legal advisor is requested to review the intelligence information in order advise the commander whether to adopt the recommendation. In my postings as senior security advisor to the West Bank Legal Advisor (1990-1992) and Gaza Strip Legal Advisor (1994-1997), I was asked to review ISA recommendations to military commanders regarding Palestinian residents of the West Bank and Gaza Strip. My recommendations were either to:

1) Accept the ISA’s detention recommendation and if yes, whether to affirm the ISA’s recommendation regarding length of detention (up to six months); OR
2) Reject the ISA recommendation and recommend either not to detain the individual or to arrest for purposes of initiating a criminal law process.

My recommendations (to the commander) were based on the following considerations:

1) Quality of intelligence and source reliability/credibility (this required expert opinion by an ISA official);
2) Timeliness/staleness of the intelligence information (this required expert opinion by an ISA case agent);
3) Previous activities of the individual (this required review of the intelligence dossier prepared by the ISA);
4) Impact on the individual’s immediate community; this was of particular relevance if the individual was a highly regarded/respected leader (this required expert opinion by an ISA official);
5) NGO response (while Israeli and international human rights organizations were unanimous in their criticism of the measure, there was additional sensitivity with respect certain categories including women, ‘people of prominence’, and attorneys);
6) Severity of the danger posed by the individual (this required expert opinion by an ISA official);
7) Whether the intelligence information could be declassified and the individual interrogated thereby enabling initiation of the criminal law process;
8. Danger to the source/s were the information to be declassified (this required expert opinion by an ISA official);
9) Whether the Israel Supreme Court (sitting as the High Court of Justice) would intervene in the commander’s decision.

Were I to affirm the ISA’s recommendation then the intelligence dossier and my recommendations were brought before the commander; if the commander accepted my recommendation the individual would be detained in accordance with the signed order which included a short description of the order’s justification (largely a general statement regarding the individual’s activity).

As I shall discuss in subsequent postings, the orders are subject to judicial review (military court and Israel Supreme Court).

We’re delighted to have Professor Amos Guiora join us this week as a guest blogger at Opinio Juris, where he’ll be discussing what lessons U.S. lawyers and policymakers might draw from the Israeli experience in administrative security detention. As many regular OJ’ers know, Professor Guiora is an expert on comparative counterterrorism law and has published extensively both in the United States and Europe on issues related to national security, limits of interrogation, religion and terrorism, and the limits of government power. Before taking his current position at SJ Quinney College of Law at the University of Utah, Professor Guiora served for 19 years in the Israel Defense Forces Judge Advocate General’s Corps (Lt. Col. Ret.). He there held a number of senior command positions, including Commander of the IDF School of Military Law, Judge Advocate for the Navy and Home Front Command, and Legal Advisor to the Gaza Strip. During his service with IDF, he had direct involvement in Israel’s administrative detention regime (serving variously as legal advisor, prosecutor and military court judge). Given the salience of these issues here in the U.S. these days, we’re very much looking forward to hearing Professor Guiora’s thoughts.

I would like to thank everyone at Opinio Juris for inviting me to guest blog this week on detention policy issues facing the Obama Administration, the Congress and the courts. Needless to say, I hope my comments contribute to the debate and I welcome comments/feedback from readers. The discussion below addresses both detainees presently held and those detained who will be detained in the days and years ahead. My fundamental assumption is that the present detention model—which I suggest is largely ‘indefinite detention’—must be replaced by a paradigm that is consistent with U.S. constitutional protections and guarantees as articulated by the Supreme Court in Boumediene v. Bush and Judge Bates with respect to habeas corpus.