In an op-ed originally published in The Jerusalem Post, IDI Vice President Prof. Mordechai Kremnitzer and Senior Fellow Yuval Shany discuss the need for measures, laws, and institutions designed to combat the war on terror in order to strike a delicate balance between the imperatives of national security and the necessity of safeguarding basic democratic values such as human rights and the rule of law.
The two recent speeches delivered almost simultaneously by President Barack Obama and former Vice-President Dick Cheney in the National Archives and the American Enterprise Institute, respectively, reveal some fundamental differences of opinion on one of the most fundamental challenges of our age: how can a democracy maintain an open society in the face of the unprecedented threat posed by modern terrorism. Mr. Cheney argued that "in the fight against terrorism, there is no middle ground, and half measures keep you half exposed." Mr. Obama, on the other hand, contended that although the terrorist threat confronting America justifies extraordinary measures, these must conform to fundamental constitutional values.
Although the Obama-Cheney exchange reflects differences of ideology, it also reflects the natural progression of perceptions of the war on terror, which has shifted from an extraordinary response to the singular catastrophe of 9/11, to a "long-war" against what now appears to be a permanent threat. When a democratic society faces a permanent threat, it cannot merely react with temporary measures; it must engage in critical thinking on the sort of counter-measures and institutional arrangements that may be necessary to address the threat over an indefinite time span. These new measures, laws and institutions must strike a delicate balance between the imperatives of national security on the one hand and the necessity of safeguarding basic democratic values, such as human rights and the rule of law.
In Israel too, a sharp ideological battle rages between those who support the empowerment of the executive branch to conduct sweeping counter-terrorism measures (such as group-based immigration restrictions or punitive house demolitions) and those who advocate "half-way measures" that involve the assumption of some security risks in order to safeguard human rights (such as limiting detention of unlawful combatants to high-risk individuals or rerouting the separation barrier in the West Bank in order to accommodate humanitarian concerns).
Israel's record in these matters is far from perfect. However, the prolonged exposure to a chronic threat has engendered widespread recognition within Israeli society of the need to develop a long-term normative and policy framework suited to confronting the unique threat of modern terrorism. An array of specific measures and institutions has developed over the years, and these have become the focus of the debate. For example, there is broad support in Israel for the existence of a legal institution of 'preventive detentions', which can be used to hold suspected enemy combatants for prolonged periods of time yet is subject to judicial control at predetermined stages of the detention. Although this institution is certainly not ideal from a democratic standpoint, it is generally regarded as a necessary evil in the struggle against an even greater evil. Nevertheless, there is vigorous debate over the extent to which the existing system actually succeeds in practice to balance human rights with security interests. One particular source of contention, to cite one example, is the handling of secret evidence by judges in court sessions conducted without the presence of the detainee or his legal representative.
In recent years, we at the Israel Democracy Institute (IDI), a Jerusalem-based think tank, have conducted an intensive investigation of the relationship between counter-terrorism and human rights. One of our conclusions is that the Israeli experience offers insight into the operational successes and shortcomings of long-term counter-terrorist practices. For example, the involvement of Israeli judges in monitoring counter-terrorist measures, such as preventive detention, illustrates that judges tend to be much more receptive to national security considerations than might be expected. The Israeli experience also supports the conclusion that limits on extraordinary counter-terrorism measures, such as enhanced interrogation techniques, tend to be eroded over time. Hence, even after the Israeli Supreme Court banned the use of coercive interrogation techniques by the security services in 1999, such practices appear to continue pursuant to undisclosed internal procedures that invoke necessity-type legal defenses, permissions and other institutionalized exceptions.
The Israeli experience is relevant to the critical debate currently underway in the United States; at the same time, the way the discussion evolves in the U.S. may have important implications for Israel's ongoing evaluation of its own existing laws and policies. More broadly, the debate on democratic counterterrorism has relevance for democracies around the world, which all face variations of the same dilemma. For this reason, IDI, the Woodrow Wilson Center in Washington, D.C. and the Max Planck Institute for Foreign and International Criminal Law in Germany have established a international study group of prominent experts on the subject, designed to come up with specific counter-terrorism policies suitable for democracies, which face similar threats of a long-term nature. The proposals the group devises will rely on a thorough examination of the track record of the world's democracies in the battle against terrorism. The lessons learned from this collective experience will not resolve the ideological debate between Obama and Cheney; they will, however, inform the debate and help shape practical solutions that rely on the lessons of the past and enable Americans and Israelis to fight terrorism effectively while staying true to their most cherished values.
Prof. Mordechai Kremnitzer is Vice President for Research on Democracy at IDI. Prof. Yuval Shany is a Senior Fellow at IDI and Director of the Minerva Center for Human Rights at the Hebrew University of Jerusalem.
This article first appeared in The Jerusalem Post.