Protecting the homeland

By JOSH SCHEINERT
Judiciaries in other Western democracies have also had to grapple with issues ranging from the rights of detainees to reliance on secret evidence. Here is a brief survey as to how US, UK and Canada have addressed the challenges. In the June 12, 2008, US Supreme Court ruling on Guantanamo Bay, Boumediene vs Bush, Justice Anthony Kennedy declared, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." While the situation of Guantanamo detainees is different from Israel's administrative detainees, having been denied any legal recourse against their classification as enemy combatants and, thus, their denial of access to the American judiciary, the statement still speaks to those on the security side who argue that special measures, or rights derogations, are entirely permissible ways to deal with threats posed by terrorism. The American ruling is also in line with a set of rulings delivered on October 31, 2007, by the British House of Lords against the British government's method for dealing with secret evidence on terror-related charges. In cases in which the British home secretary was trying to place a "control order" on an individual considered a threat to the security of the nation, prosecutors would often rely on secret evidence. However, in a recognition that this was a profound violation of the accused's right to make a full defense, the government put in place a system of special advocates. These were government-approved lawyers with security clearance, who saw the entire file against their client and acted on his behalf. However, in Secretary of State for the Home Department vs MB, the House of Lords ruled that even the special advocate solution was too much of a violation of the individual's rights. In the decision, Lord Brown called the right to a fair hearing "one of altogether too great importance to be sacrificed on the altar of terrorism control." As such, it was ruled that control orders based entirely on secret evidence kept from the accused violated the right to a fair hearing, even against the justification of protecting national security. Furthermore, the February 2007 Supreme Court of Canada ruling in Charkaoui vs Canada overturned the procedure for holding secret hearings to place alleged security threats on a "security certificate" which leads to their detention and possible deportation. In rejecting the reliance on secret evidence and calling for a system that took the rights of the individual into greater account, Chief Justice Beverley McLachlin wrote, "More must be done to meet the requirements of a free and democratic society." Yet, here too, opinion is divided. Lila Margalit, an attorney with the Association for Civil Rights in Israel who specializes in administrative detention, believes these developments point to the reality that Israel must deal with secret evidence "in a more serious manner." However Brig.-Gen. (res.) and former judge advocate-general Amnon Straschnov believes the comparison with other countries is unfair, as Israel's security situation is "completely different."