by Fiss, Owen
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.
Barak acknowledged that, at a criminal trial after the fact, the guard who tortured the prisoner in this imagined scenario might—only might—be able to assert the defense of necessity and on that ground be exonerated. Some have criticized him for this concession. These critics fail to account for the fact that even the most absolute of rules are often tempered in their application. In the United States, for example, someone who tortured a prisoner to save innocent lives or the destruction of a city could assert a necessity defense or, more likely, trust a sympathetic jury to nullify the law through a general verdict of “not guilty.”
For the most part, Justice Barak’s principles are not absolutes like the prohibition of torture but rather seek an accommodation of conflicting values or, as he has put it, “clashing considerations.”5 In that sense, they are like the Fifth Amendment’s requirement of due process or the Fourth Amendment’s protection against unreasonable searches. The terms “due” and “unreasonable” necessarily entail a consideration of conflicting values, and as a result the liberties that these amendments promise are especially vulnerable in times of stress, when military necessity is to justify a sacrifice of individual freedom. For that reason, Barak’s work is especially instructive because
he has sought to create a distinctive judicial method—call it a jurisprudence—that acknowledges military necessity without permitting it to overwhelm fundamental freedoms.
This method accounts for two of his most important rulings on terrorism. One required the Israeli military to reroute the security fence that it was building between itself and the Occupied Territories to prevent the infiltration of suicide bombers and other terrorists.6 The other—the so-called targeted killing case—limited the power of the military to kill persons who are civilians but who are suspected by the military of engaging in terrorist activities in Israel.7
Like any good judge, Barak began his analysis in these cases with an acknowledgment of the values—all the values—at stake in the controversy. He recognized the interest served by the government’s action as well as the harms that would likely be inflicted by the proposed action. He accepted that national security—the survival of the nation and the protection of the lives of Israeli citizens—was a compelling justification for government action. But he also maintained that respect for human rights and human dignity were pillars of democracy and could not be casually brushed aside.
Although many jurists have faced similar dilemmas, Barak’s distinctive contribution has been to place limits on the deference due to the military. In his opinions, he drew a vital distinction between the assessment of military needs and the question of whether the military action is normatively justified given its impact on fundamental values. He was prepared to defer to the government in its assessment of military needs but saw it as the essence of his job to determine whether the pursuit of those needs unjustifiably interfered with the exercise of a protected liberty or a fundamental value.
In the case regarding the construction of a security fence, for example, those contesting the route of the fence offered evidence—experts with considerable military experience—to demonstrate how the military’s needs could be satisfied by building the fence along a line other than the one proposed. Yet Justice Barak was unprepared to second-guess the military on that score, and regarded the military’s judgment on how to satisfy its needs as determinative. He took this view not simply because of the military’s expertise on issues of national security but rather, and perhaps more fundamentally, because the military alone is responsible for the technical quality of its actions. By contrast, Barak reserved for the judiciary the function of determining whether the infringement of basic rights would be so great as to bar the military from acting as it wished. There was to be no deference in the realm of values. That judgment, in his view, belonged to the judiciary.
We in the United States have a strong tradition—especially evident in the post–9/11 era—of judicial deference to military authorities, but we fail to make Barak’s distinction. Our deference goes not just to the military’s technical assessment of the needs of national security but also to the question of whether, given the harm to fundamental values, its proposed actions are normatively justified. By granting the executive wide latitude both in its pursuit of its objectives and in its determination that those objectives merit sacrificing basic freedoms, the American judiciary allows the executive to strike the balance between military necessity and fundamental values. Such blanket deference overlooks the genuine danger to fundamental values posed by a political agency’s response to perceived military needs or external dangers. It is true that in a presidential system, such as that of the United States, the executive and the legislature have independent sources of legitimacy, and thus the legislature can act as a check on the executive. Yet as the enactment of the Detainee Treatment Act of 2005, the Military Commissions Acts of 2006 and 2009, and the 2008 amendments of the Foreign Intelligence Surveillance Act illustrate, the legislature can also be complicit in the transgression of basic liberties in times of war. In this respect, judicial deference to the executive of the type Barak opposed is no more justified in a presidential system than in the Israeli parliamentary system.
In her opinion in Hamdi v. Rumsfeld, Justice O’Connor was explicit about the need for deference to the executive in fashioning procedural rules for adjudicating a claim to freedom by any individual—even a citizen—accused of being an enemy combatant. She was willing to place on the prisoner the burden of proving that the military’s field records were mistaken, and she would have allowed military tribunals to decide the merits of that claim. A similar deference was manifest in the U.S. Supreme Court’s refusal to force the government to charge persons held for prolonged periods, as well as in the lower courts’ decisions not to give redress to victims of extraordinary rendition or even to inquire into the merits of their allegations. I suspect that the fear of interfering with the executive’s capacity to conduct foreign affairs also explains the Supreme Court’s 2013 decision denying standing to challenge the 2008 FISA amendments to persons whose telephone calls were likely to be intercepted under that measure.
Not only has Barak rejected this kind of blanket deference as a dereliction of what he understands to be the duty of a judge, he also has identified with greater clarity than any American jurist the appropriate inquiries for determining when a government action that affects fundamental values is justified. These inquiries, which he generally refers to as the “proportionality test,” examine both the instrumental and the substantive rationality of the government’s action. Justice Barak pursued these inquiries in all manner of cases, especially in recent years, but they had their greatest force in his rulings on national security. For that reason, they are especially illuminating in gauging the American response to terrorism in the post–9/11 era.
The instrumental inquiry concerns the relation between means and ends. It asks whether the means chosen by the government are rationally related to the end and, more important, whether the chosen means are the least restrictive alternative. Barak requires that the means be narrowly tailored to achieve their purpose, fitting, to use his metaphor, as closely as a suit might fit a body.8 The sacrifice of fundamental values must be kept to an absolute minimum. This means that if the government has an alternative way of meeting its needs that entails less of a sacrifice in fundamental values, the original, more burdensome actions will not be allowed.
In the targeted killings case, for example, Barak fully appreciated the danger of terrorist attacks but sought to carefully cabin the power of the military to kill suspected terrorists. He drew a sharp line between enemy combatants and civilians, and was wary of placing civilians who were suspected of terrorism in yet a third category—unlawful combatants—that would afford neither the protections given to combatants nor those given to civilians. Although the laws of war allow the military to kill combatants in the course of armed conflict, civilians are fully protected. Civilians forfeit this protection when they participate in hostilities, such as terrorist attacks, but Justice Barak stringently defined the conditions for such forfeiture. Links to or membership in a terrorist organization were not sufficient. The person targeted, according to Barak, had to take a direct part in hostilities and was vulnerable to attack only while engaged in such hostilities. Even then, the military had the obligation to pursue only the least harmful means and could not kill the suspected terrorist if arrest and trial were feasible. As Barak reasoned, “among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest.”9
The U.S. Supreme Court, under the rubric of strict scrutiny, has required that when a fundamental value such as free speech or racial equality is threatened, the government must use the least restrictive means available to pursue its end—or, to use another formulation, governmental interference with a privileged value must be no greater than necessary. Unfortunately, however, the Court applies strict scrutiny only intermittently, and hardly ever in the context of war. Perhaps most famously, the Supreme Court did not insist upon the least restrictive means or least harmful alternative in the Korematsu case, even though in that decision the Court announced—for the very first time—that racial classifications should be
strictly scrutinized.10 Korematsu gave constitutional legitimacy to the mass relocation of persons of Japanese ancestry in the western states during the Second World War. Although the Court said that it was applying strict scrutiny to the relocation program, it nevertheless deferred to the government’s assessment of the need for such a policy and, more importantly, it never considered whether less harmful alternatives were available.
The second type of inquiry in Barak’s decisions—an inquiry that could be characterized as an investigation into substantive rationality—asks whether the harm of the government action is disproportionate to the benefit that might be achieved from it. In other words, even if the government’s action serves compelling interests and the means used are rationally connected to the pursuit of those interests and in fact represent the least restrictive alternative, the government’s action will nevertheless be deemed unjustified and thus unlawful if the harm it inflicts is disproportionately greater than the gains that it might achieve. Aside from some concurring and dissenting opinions by Justice Breyer,11 there is no trace of this proportionality requirement in the decisions of the U.S. Supreme Court, certainly not in the context of war, and yet Justice Barak routinely and successfully applied it in a wide range of cases in which fundamental values were at stake.