Israel, said former US Supreme Court justice William Brennan in a 1987 lecture at Hebrew University in Jerusalem, may be the world’s best example of how to protect civil liberties in times of national security crisis.That honor, he said, certainly cannot fall on the US, which he maintained ″has a long history of failing to preserve civil liberties when it perceived its national security threatened.″ The most glaring example of this, he maintained, was the internment of Japanese Americans during World War II.Brennan, who served on America’s highest court from 1956 to 1990, said Israel has shown “the courage to preserve the civil liberties” without detracting from its security.Brennan’s words are quite a compliment, especially coming from a jurist who for a generation was a leader of the US court’s liberal wing. Maintaining the balance Brennan spoke about between respecting individual liberties even during times of national crisis is yet another challenge the coronavirus is throwing in the country’s direction.Prime Minister Benjamin Netanyahu has framed the threat being posed by the virus as akin to a national security threat, saying Saturday night that the nation is currently “at war” with an “invisible enemy.” And, indeed, some of the stringent measures that he has imposed are reminiscent of steps taken during war time or when facing terrorist threats: limiting public gatherings, effectively closing the borders, allowing for electronic surveillance of civilians.“We will very soon begin using technology ... digital means that we have been using in order to fight terrorism,” Netanyahu said, announcing the newest measures to fight the spread of the virus, including banning all public entertainment activities and any gathering of more than 10 people.With these technological means, Netanyahu said, “we will be able to see who they [people infected with the virus] were with, what happened before and after [they became infected],” and as a result it will be possible to “isolate the coronavirus and not the entire country.”This measure is the most invasive one yet announced, and allows the government – through electronic surveillance – to monitor through cellular phones where people have been, and with whom they have met. George Orwell’s Big Brother meets the coronavirus. And while these are unusual times that call for unusual means, this particular step is extremely intrusive. Netanyahu is aware of the precedent such a step sets, and sought the approval of Attorney-General Avichai Mandelblit to use these tracking tools ordinarily only used by the Shin Bet (Israel Security Agency) to track terrorists. “I refrained as prime minister from using these means among the civilian population until now, but there is no choice,” he said. “We are waging a war that obligates using special means, and therefore I sought the approval of the Justice Ministry. This gives us a very effective tool.”And here is where things get a bit dicey. Netanyahu used the green light he received from Mandelblit and the Justice Ministry to assure the population that these means will not be used for nefarious purposes. The problem, however, is that for months, even years, he has been bashing and undermining the legal establishment investigating him – a legal establishment that he is now asking the public to trust as he takes a far-reaching step.The fight against the spread of the coronavirus does indeed necessitate drastic measures, and to implement those steps, it is important that the country have a high level of trust in its leadership and government, not only the legal establishment.Unfortunately, that trust is currently at an all time low – just when a crisis of this magnitude demands a high level of public trust in all the branches of government. And this trust is eroded even further when the trial of Netanyahu that was supposed to start on Monday was delayed on Sunday for more than two months because of an emergency decree issued at 1 a.m. by Justice Minister Amir Ohana.As a result of Ohana’s decree, courts will only sit for urgent matters that need immediate attention. And while Ohana, a Netanyahu loyalist, may indeed have issued this emergency decree because of the situation facing the country, the optics of how it was done – at 1 a.m. two days before Netanyahu’s trial was set to begin – are bad. It raises eyebrows, and triggers questions at a time when the country needs to be confident that the only thing guiding the decisions the government is taking is indeed the health and well-being of the nation.The country is being asked to completely alter its way of life, and to allow the government to monitor its movements in an unprecedented way. It does not help if questions are raised about whether ulterior motives are behind one decree or another. Israel, like much of the rest of the world, is currently sailing in dangerous waters as the coronavirus batters the ship. It is essential, however, that even during this unprecedented period, the democratic norms that the country has managed to maintain up until now, be maintained going forward as well.The novel coronavirus will, at some time, pass. And when it does, it is essential that the democratic institutions – and indeed our civil liberties – have not been whittled away in the cause of defeating the plague. Emergency regulations enacted during times of crisis have been known throughout the world to outlast the crisis that they were meant to deal with. It is critical this does not happen here.
