Submit brief on behalf of petitioners being held without access to courts.
By DAN IZENBERGGuantanamo Bay 224.88(photo credit: AP)
A group of Israel law professors has submitted a brief to the US Supreme Court on behalf of petitioners who have been held at the Guantanamo Bay naval prison for several years without access to law courts or lawyers, two of the signatories told The Jerusalem Post Wednesday.
The brief was submitted by the professors in the status of amici curiae (friends of the court). By dint of their special expertise in the subject being dealt with by the court, amici curiae are regarded as those who can help it reach a more educated decision.
The signatories include University of Haifa Professors Ariel Bendor and Emmanuel Gross, Tel Aviv University Professors Eyal Benveniste, Asher Maoz and Amos Shapira (emeritus) and Hebrew University of Jerusalem Professors Barak Medina and Yuval Shany.
In the summary of their argument, the professors wrote: "Judicial review of executive and military detention, the indispensable core of habeus 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 and independent judicial review of the factual basis for their confinement. Israeli experience demonstrates unambiguously that providing such review would not be 'impracticable and anomalous' [as quoted from US court decision - d.i.]."
In the 30-page brief, the authors explain the Israeli system for guaranteeing the rights of security suspects without sacrificing national security.
Israeli administrative detainees can be held for no more than 48 hours before being brought before a judge. Suspected unlawful combatants can be held for up to 14 days before seeing a judge.
"By comparison," the professors wrote, "the petitioners have been held at Guantanamo for several years without a judicial hearing on the factual claims underlying their detention." The judges presiding over the hearing, whether in civil or military court, are independent, the professors continued.
According to the American system, the members of the Combatants Status Review Tribunals, which hear the cases of the detainees, are appointed by the US Navy and two of the three may be line officers rather than military lawyers.
According to Israeli law and judicial interpretation, to keep the detainee in jail, the judge must determine that the suspect poses a threat to state security and that no other measure but detention can neutralize the threat.
Unlike the US, the judge must perform a serious review of the evidence to properly balance the conflicting values of collective security and individual rights.
"Security officials make the initial assessment, but when the case reaches a court of review, the weight of evidence, the seriousness of the security threat and the appropriate balance between security needs and liberty interests are all matters for the judge to determine," the professors wrote.
Furthermore, the court is the final arbiter of whether the army may withhold evidence from the detainee and his lawyers on the grounds that their disclosure could damage Israeli security.
Israel also prohibits all inhumane methods of interrogation, the professors wrote. Israeli criminal suspects and administrative detainees may, under certain circumstances, be prevented from seeing a lawyer for 21 days.
Certain criminal suspects and administrative detainees in the West Bank may be prevented from seeing a lawyer for up to 34 days. Suspected unlawful combatants may be prevented from seeing a lawyer for seven days.
"By comparison," wrote the professors, "the US government argues that many years of complete isolation are a necessary tool for effectively combating modern terrorism."
In Israel, an independent judge reviews the case of anyone held in administrative detention every six months. In the US, the Administrative Review Board, whose members are appointed by the deputy secretary of defense, reconsiders the detention of terrorist suspects once a year and is not empowered to release a suspect. That decision is left to the executive branch.
Two of the signatories, Gross and Bendor, told The Jerusalem Post the group had been approached by Benveniste, who also teaches at New York University. He had been asked to prepare the brief in support of the petitioners whose appeals against their classification as enemy combatants had reached the Supreme Court.
"I thought it was right that another country which is friendly towards the US and also faces a terrorist threat, should show the court that it was possible to deal with the threat without sacrificing democratic principles," said Gross.
One of the Supreme Court petitioners is an Algerian citizen named Lakhdar Boumediene. He was arrested in Bosnia in October 2001, allegedly illegally removed from Bosnian soil on January 18, 2002, and flown to Guantanamo Bay, where he has been held ever since.
Gross said the identity of the petitioners did not really matter. "Everyone is entitled to a minimum of rights, including access to the court and representation by a lawyer," he said.
Bendor said he thought it was "correct and appropriate that the legal situation in Israel regarding the terrorist threat be presented to the Supreme Court." Generally speaking, he said, Israel was more influenced by the US judicial system than vice versa, and the US was less open to comparative systems of law.
"I thought this would be an opportunity regarding a very important subject," Bendor said. "Israel has more experience than the US in the fight against terrorism."
Gross said he was not arguing that the Israeli system was the best possible one.
"I am just saying that there is an alternative to the American one," he said. "It is better than the American one, but I am not saying that it is the best one. It has many problems of its own."
Bendor wrote that the brief was "descriptive. Each one of the signatories has his own idea as to whether or not the situation in Israel is good." He added that he believed the US had "exaggerated fears" that if it granted basic rights to terrorist suspects, its national security would be put at risk
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