A War Like No Other (19 page)

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.”
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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.
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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.
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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.
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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.”
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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.

In fact, proportionality was the linchpin of Barak’s opinion in the case of the security fence. Although he accepted the military’s claim that its proposed lines for the security fence would be the most effective in saving the lives of Israeli citizens and that any redrawing of the lines would result in increased loss of life from terrorist attacks, he nonetheless ordered sections of the fence built along a different line in order to reduce the harm to Palestinians that would result from the division of their communities and separation from their fields and places of work. The harm of the lines proposed by the military was deemed disproportionate to any advantages that might be achieved in terms of security. Put another way, Barak was prepared to sacrifice the military objectives—to risk Israeli lives—in order to avoid the greater harm to the Palestinian communities that would have resulted from the erection of the security barrier as originally planned. His intention was not to demean the importance of the military objective but to find a way to accommodate two compelling, albeit conflicting, values.

In all this—his refusal to defer to the military in the tradeoff of values, his insistence on the least restrictive alternative, and, finally, his application of the requirement that the harm to fundamental values not be disproportionate to the gain in security—Justice Barak held firm in his attachment to the law and the belief that the law is the embodiment of reason in the service of humanity. His method was to demand, systematically and relentlessly, that any sacrifices of rights required by a proper regard for human dignity be fully and rationally justified. In so doing, Barak revealed a deep and profound commitment to reason—the common element that unites his life as a professor
and as a judge and that defines his unique place in Israeli society and the world legal community. For him to declare, as he has done on many occasions, that “law is everywhere”
¹²
is to invite us to imagine that every aspect of our public life, even war, should be governed by reason, and reason alone.

Aharon Barak and I are the closest of friends, but I have often wondered in private: Isn’t it remarkable that in such a small corner of the world, so often racked by violence and religious passions, a modern-day apostle of the Enlightenment has risen and taken a place not just in the history of Israel but of all mankind?

PART II

THE NEW NORMAL

Prologue to Chapter 6

Trevor Sutton

“I don’t want these individuals to die,” President Obama said at an emotional press conference held in April 2013, following media reports of a hunger strike by more than one hundred prisoners held at the detention facility in Guantánamo Bay, Cuba. “I am going to go back at this,” he promised, alluding to his unfulfilled 2008 campaign pledge to close the prison and end the practices that made it infamous. “I am going to get my team to review everything that is currently being done in Guantánamo,” he continued, adding: “I am going to reengage with Congress to try and make the case that [Guantánamo] is not in the best interests of the American people.”