Israel's Example

Tuesday, September 4, 2007

NO ONE would say that Israel is soft on terrorism, which makes it all the more fascinating that a country that essentially lives under siege provides so many legal accommodations to those it detains as unlawful combatants. It's a stark contrast to the Bush administration's approach and one the administration may be able to learn from.

That's essentially the point made by a handful of Israeli law professors and military law experts in a recently filed friend-of-the-court brief in Boumediene v. Bush. The U.S. Supreme Court is scheduled to hear the case this fall to determine whether the administration has lawfully detained Mr. Boumediene as an enemy combatant.

Mr. Boumediene and five other Algerians who had become Bosnian nationals were arrested in Bosnia at the behest of the United States in October 2001 on suspicion that they were plotting to bomb the U.S. Embassy there. In January 2002, the Bosnian courts ordered the release of the detainees after finding no basis for the allegations, but the United States demanded and got custody of the men. The six have been held at Guantanamo Bay for the past 5 1/2 years, with limited consultation with lawyers and limited ability to challenge their detention. The Bush administration argues that non-U.S. citizens detained on foreign soil have no right to the constitutional protections enjoyed by Americans. The Supreme Court may yet agree, but there is little doubt these six detainees would have had a dramatically different experience had they been detained by Israel.

In Israel, even noncitizens captured outside the country and designated unlawful combatants are entitled to due process in Israeli civilian courts. They are guaranteed judicial review of their detention within 14 days of capture. They are guaranteed the services of a lawyer no later than 34 days after capture. And they are guaranteed a review of their detention by an Israeli district court judge every six months thereafter. If an unlawful combatant is captured in the occupied territories of the West Bank, the case proceeds through Israeli military courts, with similar guarantees of judicial review and legal representation.

The Israeli system is not without critics. Advocates of civil liberties there point to procedures that allow a judge to review evidence introduced by the government that the defense has not seen or been allowed to rebut. And detainee advocates, such as the Israeli group HaMoked, suggest that the government enjoys an overwhelming advantage, as evidenced by the relatively few detentions that have been forbidden by judges. According to its Web site, the group challenged 142 detentions in 2004; 11 of those challenges prevailed.

Nothing in the Israeli system prevents a lengthy and potentially indefinite detention of an enemy combatant. But unlike the state of play in the United States, the Israeli Supreme Court has ruled that these combatants can be held only so long as the state can prove they are an imminent danger. If the state fails to make that case, the detainees must be released. According to the Israeli law professors, these safeguards have not clogged the nation's courts -- or prevented Israeli security forces from defending the country.


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