A War Like No Other (18 page)

The Creation of a New Normal

Although the differences between Bush and Obama must be noted and acknowledged, the essential truth is one of continuity. Obama has sought to block judicial inquiries into extraordinary rendition. Obama has continued the policy of imprisonment without trial. Obama has sought to deny the writ of habeas corpus to the prisoners now being held in Bagram. Obama has continued to use military commissions to try terrorist suspects. And Obama has continued the policy of warrantless wiretaps. Obama sometimes announced these policies with reluctance, which was never Bush’s style, but in the end Obama overcame this reluctance and chose to sacrifice principle.

The reasons for Obama’s perpetuation of Bush’s policies are hard to fathom. Maybe Obama learned things about the nature of the terrorist threat that he did not know before. Maybe Obama compromised on these issues of principle in order to gain support for a number of his domestic policies—health care or economic recovery. Or maybe Obama has been unable to resist the momentum achieved by the Bush policies once they were, for the most part, endorsed by Congress and condoned by the Supreme Court. We do not know and we are likely never to know. Our concern should be, however, not with the reasons for Obama’s actions but rather with the consequences of his action, which are unmistakable and troubling.

In the immediate wake of 9/11 and the beginning of the War on Terror, many of the abuses of the Constitution that I have identified were seen as aberrations, perhaps unilateral excesses of Bush and his close circle of advisers. Soon these practices
received the endorsement of Congress and often the acquiescence of the Supreme Court. Now they have been endorsed by the new president, a lawyer who professes to be dedicated to the Constitution and the highest ideals of the nation. As a result, the transgressions of the Bush era, rather than being denounced as unworthy of our Constitution, have been institutionalized. They have become the official policies of our government and are routinely defended as constitutional. The transgressions we suffer today will inevitably determine what is permissible in the future. They have shaped our understanding of what is acceptable, and may well serve as precedents for a less reluctant president.

Continued in this way, unconstitutional policies initiated by Bush have taken on a life of their own and have become durable features of our legal order. As such, they betray the proudest ideals of the nation, undermine one of the pillars of our self-understanding, and deny us—all of us, including Obama—the right to speak of the example of America as we once did—as a beacon for all the world.

Prologue to Chapter 5

Trevor Sutton

Many of the legal issues addressed in these essays were matters of genuine first impression for American jurists—and indeed for the majority of American lawyers and legal academics, including Owen Fiss. It is true that the United States’ long history of armed conflict contains episodes that informed the judiciary’s assessment of the Bush administration’s War on Terror. Nevertheless, none of the seminal Supreme Court decisions relating to the executive’s wartime actions, such as
Ex Parte Milligan, Ex Parte Quirin,
and
In Re Yamashita,
supplied a clear precedent to resolve the central questions examined by the Supreme Court in its review of the Bush administration’s counterterrorism policies; nor have they provided an easy answer for the controversial counterterror programs of the Obama administration, such as the targeted killing of American citizens affiliated with overseas terrorist groups.

But such questions were not novel to the entire world. One country in particular, Israel, has for much of its modern history struggled to balance its need for security with its belief in human
rights, civil liberties, and the fundamental dignity of the individual. In Israel, perhaps to a greater degree than in any other nation, the judiciary is routinely asked to adjudicate between these powerful considerations. As in the United States, on especially sensitive or intractable issues, Israel’s Supreme Court often has final—or at least a very influential—say.

That Israel’s Supreme Court has come to occupy a pivotal role in the country’s public life and served as a beacon to many courts throughout the world owes much to the country’s most famous jurist, Aharon Barak. This chapter, “Law Is Everywhere,” discusses some of Barak’s seminal decisions weighing security against fundamental rights. These decisions are an important part of Barak’s legacy, but they are only one part. Even before he became president of the Supreme Court, Barak made major contributions to Israeli jurisprudence. The title “Law Is Everywhere” is meant to capture Barak’s universalist vision of the reach of legal norms, and echoes Barak’s famous assertion that “the world is filled with law,” a belief that received its fullest treatment in Barak’s 2008 book,
The Judge in a Democracy.
Consistent with this vision, under Barak’s influence the Supreme Court revolutionized traditional Israeli standing doctrine to eliminate the “particularized” or “personal” injury prong so familiar to students of American civil procedure. According to a series of decisions penned by Barak over the course of the 1980s and 1990s, a plaintiff in an Israeli court needed to show only that a violation of the law has occurred, and that the plaintiff’s suit for redress is in the public interest.

“Law Is Everywhere” first appeared in the
Yale Law Journal
in 2007 as a tribute to Aharon Barak on his retirement. The essay was not the product of distant admiration. Fiss and Barak have been intellectual companions and personal friends for many decades, and some have said that the legal philosophy captured in Fiss’s
The Law As It Could Be
is the one that best approximates
Barak’s ideas about the role of law in society. This shared vision is all the more extraordinary when one considers that Barak did not have the luxury of advocacy without consequence; his lofty political perches required him to have the courage of his convictions. Such courage is all the more remarkable in a country like Israel, where the threat of political violence is far more pervasive and acute than in the United States, and where under certain circumstances the legislature can overrule a decision of the Supreme Court if it feels the Court has overstepped its bounds.

Chapter 5

LAW IS EVERYWHERE

A
haron Barak was born in Lithuania in 1936. He was one of the few who miraculously survived the slaughter of Jews in that country during the Second World War—he and his mother hid in the walls of a neighbor’s house, while his father was able to continue laboring in the ghetto. Barak moved to Israel with both his parents after the war, became a professor of law at Hebrew University in 1968, and later served as dean of the law faculty. From 1975 to 1978 he was the attorney general of Israel. In 1978, Barak was appointed to the Israeli Supreme Court and then received special dispensation from the Court to serve as a legal adviser to Prime Minister Menachem Begin at the Camp David peace talks with Egypt that occurred in September of that year. Barak became president of the Israeli Supreme Court in 1995, and he retired from that Court on his seventieth birthday, in September 2006.

Barak’s rulings, particularly those involving issues of national security, have been heralded throughout the world and teach an important lesson on how to be faithful to the rule of law in the face of a terrorist threat. Living through the post–9/11 era in the United States and taking account of the constitutional
wrongs to which we have become so accustomed makes those rulings all the more remarkable. He safeguarded basic liberties in a context in which the threat to national security was as great as, if not greater than, the threat facing the United States.

We in the United States have the benefit of geographic distance. Iraq and Afghanistan are geographically remote. It may be that al-Qaeda has agents within the United States, but its nerve center is located half a world away—somewhere in the mountains between Afghanistan and Pakistan. Israel’s enemies, such as Syria and Iran, are its neighbors, and terrorist organizations have their centers on Israel’s borders—Hezbollah in Lebanon and Hamas in Gaza.

The suicide bombings in Israel and the rockets of Hezbollah and Hamas may not have the same quality of spectacle as the 9/11 terrorist attacks on the United States, but they have been more pervasive and have wrought death and destruction on an enormous scale, especially given the small size of the country. The threat of terrorism is part of the fabric of everyday life in Israel.

Some of the acts of terrorism Israel has encountered are fueled by the same kind of inchoate hatred that impels al-Qaeda. Others have a discrete strategic objective: to bring an end to Israeli occupation of the territories it acquired at the end of the 1967 war and to create a Palestinian state in them. Still others, for example the terrorist attacks associated with Hezbollah and Hamas, seek to eradicate Israel as a nation and establish a Palestinian state stretching from Jordan to the sea. The attacks of al-Qaeda on the United States on 9/11 cannot plausibly be regarded as having such grandiose ambitions, nor could any of the sporadic terrorist attacks or attempted attacks that occurred over the past decade.

The pleas of military necessity confronting Barak were more pressing than those faced by the U.S. president and other branches of government in the post–9/11 era, and the sources
upon which claims of rights rested were more elusive. As Barak acknowledged, he had to develop “constitutional law without a constitution.”
¹
Israel has no written constitution. At the time of its founding, plans were made for the formulation and adoption of a constitution. Indeed, its Declaration of Independence promised that a constitution would be adopted no later than October 1, 1948. But those plans never came to fruition. So Barak, following in the tradition of his predecessors, constructed many of the governing principles of Israel—its body of constitutional law—as an elaboration of Israel’s foundational aspiration, set forth in the Declaration of Independence, to be a free and democratic society. Such a rationalistic endeavor is also the core of the process that has given content and life to the American constitutional tradition, but the American Supreme Court has enjoyed the comfort of a sturdy source of authority—the written Constitution of 1787 and all its amendments.

Israel is governed through a parliamentary system, which among other things means that it is committed to the principle of legislative supremacy. Once the plan to adopt a written constitution failed, the Knesset (the Israeli parliament) began enacting a series of statutes known as the Basic Laws, which purport to set forth the governing principles of Israeli society. For Israel’s first forty years, the Basic Laws primarily addressed the structure and organization of government powers. In 1992, however, the Knesset took a new turn and adopted a Basic Law guaranteeing human dignity and freedom. This law can properly be seen as part of the human rights tradition and resembles the U.S. Bill of Rights in both the generosity of its spirit and the generality of its language. Since 1992, this Basic Law has functioned for Justice Barak much as a written constitution, with one important exception: the supremacy of the legislature is preserved.

In a well-known 1995 decision, Justice Barak held that because the Basic Laws were passed by the Knesset sitting as a
constitutional assembly, they took precedence over ordinary legislation, even if that legislation was adopted after the enactment of the Basic Laws.
²
Yet the legislature remains supreme. The Knesset possesses the power to amend any Basic Law in order to allow a statute that would otherwise be invalid because of a conflict. Generally, a Basic Law can be amended by a simple majority of the members of the Knesset present, although certain provisions of some of the Basic Laws—not the one on human dignity—stipulate that an amendment requires an absolute majority of all members of the Knesset or a supermajority.

Israel is a small country of around 7 million people, covering a compact geographic area roughly the size of New Jersey. Its political culture is characterized by vibrant public discussion (to understate the matter). Barak’s decisions are widely known throughout the nation and remain a subject of great controversy. Some attempts have even been made to overturn them. Once, the minister of justice proposed amending the Basic Law on human dignity in order to overturn a decision—one of Barak’s last—that invalidated a statute that had exempted the state from compensating Palestinians in designated zones in the Occupied Territories for injuries caused by Israeli security forces, even if the injuries did not relate to military operations aimed at suppressing terrorism.
³
Yet, so far, none of these efforts has succeeded, which is a testament both to Justice Barak and to the strength of the country’s foundational commitments.

Barak’s constitution is one without borders. It binds Israeli officials wherever they might be and protects citizens and noncitizens alike. Its overarching aim is to protect human dignity, which Barak sees as lying at the foundation of democracy and as the source of rights people are owed simply by virtue of their humanity. The depth of his commitment to human dignity is most clearly revealed in his decision denying the military the authority to subject anyone, including Palestinians or even suspected
members of Hamas or Hezbollah, to harsh and aggressive interrogation techniques that he regarded as torture.
⁴
Impelled by respect for the dignity of all persons, Barak fashioned a prohibition of torture that is as absolute as the one found—at least before 9/11—in the U.S. Constitution.

Some commentators have called into question the absolute nature of this prohibition by imagining a scenario in which the only way to avoid a great loss of human life and other disastrous consequences is through torturing a prisoner. In this scenario, a bomb of enormous power is ticking away in a city and only the prisoner knows where it is located. In his ruling banning especially aggressive interrogation techniques, Justice Barak confronted this dilemma, even though the facts before him did not require him to do so, and he held that even in such a dire context a prior authorization of torture would be unconstitutional. The offense to human dignity would be too gross.