A Comparison of U.S. and Israeli Detainee Policies

Dozens of amicus briefs have been filed with the Supreme Court in connection with the Guantanamo detainee cases (Al Odah & Boumediene) that are scheduled for oral argument in December. One particularly interesting brief (h/t Marty Lederman) was submitted in support of the petitioners by a group of Israeli law professors (many of them former military judges and lawyers) who are experts in Israeli military and constitutional law. The brief was submitted primarily to rebut the claim that military necessity demands that "enemy combatants" be held without process, without access to counsel, and without any independent oversight.

Judicial review of executive and military detention, the indispensable corp of habeas corpus, need not be sacrificed to protect public safety and national security, even in the face of an unremitting terrorist threat. Israel has demonstrated that security detainees and prisoners of war, including alleged unlawful combatants, can and should be afforded the opportunity for prompt, independent judicial review of the factual basis for their confinement. Israeli experience demonstrates unambiguously that providing such review to Guantanamo detainees would not be "impracticable and anomalous." [citation omitted]

For more than fifty years, Israel has faced mortal threats to its national survival and countless acts of terrorism against its civilian population, with devastating losses of life. Yet even as terrorist attacks have intensified, Israel has strengthened its commitment to unimpeded judicial review of detention, recognizing that "human rights are constantly threatened by the war-like situation." . . .

Over the course of many decades, Israel has been able to address its security concerns and meet its pressing need for timely intelligence while preserving independent judicial review and access to counsel. Consequently, Israeli experience makes clear that these safeguards are by no means impracticable. With Guantanamo currently holding over 300 detainees, however, the United States Government has raised the specter of an administrative nightmare, contending in these cases that detainee litigation is "consuming enormous resources and disrupting day-to-day operation of the Guantanamo Bay Naval Base." Yet in operations in the West Bank in May of 2002, the Israeli Defense Force ("IDF") seized nearly 7000 suspected enemy combatants, quickly processed and released over 5000, and gave the remaining 1600 suspects access to defense counsel and to independent courts within a matter of weeks. The contention that the United States military, with vastly greater resources, cannot provide comparable process to far fewer detainees, even years after their seizure, does not comport with Israeli experience.

That's a diplomatic way of saying that our nation is currently run by a bunch of hypocritical bedwetters. For decades we've lectured Israel about the need to respect human rights and the rule of law. But when we find ourselves faced with even a fraction of the threat that they've lived with for decades, we suddenly throw all our principles out the window and start disappearing people into black-site prisons and off-shore lawless zones where they are denied counsel, denied any meaningful process, and in some cases, tortured. Jose Padilla, a U.S. citizen, was arrested in Chicago and subsequently held in solitary confinement in a military brig for over four years without any process. Contrast that with the Israeli system:

[The set of laws]--which govern detentions in the State of Israel, detentions in the occupied territories, and detentions of unlawful combatants--protects basic rights that the United States Government denies to Guantanamo's detainees. Specifically, individuals detained by Israeli civilian or military authorities always have (1) the right to judicial review of the basis for their detention within no more than fourteen days of their seizure; (2) the right to have that review conducted by a judicial officer independent of the executive who is empowered, when evidence warrants, to order their release; (3) the benefit of a standard that permits detention only when an individual poses a threat to State security and when no other means are available to neutralize that threat; (4) the right to have the government's evidence subjected to a searching examination by the court; (5) the right to judicial review without having coerced testimony used against them; (6) the right to have a judge independently evaluate any claim that classified information offered to support a detention cannot be disclosed to them; (7) the right of access to counsel within no more than thirty-four days; and (8) the right to have the basis for their detention independently reviewed every six months at a fully adversarial hearing. Though the United States affords Guantanamo detainees none of these safeguards, Israel has proved through experience that each of them is workable and that each of them is essential to maintaining the rule of law.

We really should be ashamed of ourselves. We face a threat that is only a fraction of what Israel faces. We have no enemies that pose an existential threat to us; Israel is surrounded by enemies. We've suffered only one major terrorist attack on our soil. Israel has endured terrorist attacks for decades. Yet while Israel affords meaningful process to all detainees, no matter where or under what circumstances they are detained, our government stands up in court and argues that a military prison just a few hundred miles offshore is outside of the reach of our Constitutional. Our government argues that providing any meaningful process is unworkable and impracticable, even after five years of detention. And our government argues that it should have the right to hold its own citizens, without process, in perpetual solitary confinement solely for the purpose of obtaining coerced information.

It's hard to believe how far we've descended in such a short period of time.