Elena Kagan, terrorism and the law

Kagan's admiration for Justice Aharon Barak’s philosophy may have revealed her own predilection for radical judicial activism.

Elena Kagan sign 311 (photo credit: Associated Press)
Elena Kagan sign 311
(photo credit: Associated Press)
Americans may be wondering why the opinions of a former president of Israel’s Supreme Court may be so relevant to the selection of Elena Kagan as a member of the US Supreme Court, as some of her critics insist. These critics, among them several senators, claim that by repeatedly expressing her admiration for Justice Aharon Barak’s philosophy, even considering him as her mentor, Kagan revealed her own predilection for a radical judicial activism for which justice Barak is notorious.
One important issue that may be affected by Kagan’s admiration for Barak’s often articulated position is the issue of terrorism and the law. Barak and his followers insisted that the fight against terrorism must in no way affect, even in extreme emergencies, a strict adherence to the most liberal interpretation of human rights. Americans may be surprised to discover that an activist Supreme Court that was led by Barak habitually constrained its military from taking effective measures to protect innocent lives. It feared impairing Palestinian Arab rights to free movement or to a decent quality of life. Changes dictated by the Supreme Court in the security fence have cost hundreds of millions of shekels. Judicial interference in military operational details like the positioning of roadblocks resulted in fatalities, while insistence on Palestinian Arabs’ freedom of movement facilitated the penetration several times by suicide bombers.
LIKE ISRAELIS, Americans now debate, following several attempted terrorist attacks, how democracies can vanquish terrorism – and still respect human rights. How can democracies win the battle against terrorists exploiting our laws to undermine our civilized order?
Jurists hold two basic approaches on how the law should cope with terrorism: Judicial activists, like Barak and most likely Kagan believe that human rights are God’s – or nature’s – given rights. Such rights must be defined and strictly enforced by the judiciary even in times of war. Then there are the pragmatists who argue that the right to life of potential victims is no less sacred than the human rights of their assassins. They believe that even human rights must be weighed against other rights and adjudicated case by case.
These two approaches were debated in the recent past by two preeminent jurists, Judge Richard Posner of the Federal Court of Appeals in Chicago, a conservative jurist, and a guiding light of Law and Economics, and Barak. Barak, an avid practitioner of judicial activism and of the strict application of human rights, insisted that “democracy must fight terrorism with one hand tied behind its back.”
Posner, who “preferred to fight terrorism with both hands,” argued that judges lacked qualification in military matters. They based their judgments on their values and their ideology, on their personal and professional experience. Casting their decisions in terms of human rights was often an excuse to impose their ideology and personal bias under the guise of lofty principles. The rigid application of human rights at almost any cost, Posner asserted, sacrificed innocent lives to protect abstract principles.
Barak insisted that there are universal criteria judges must enforce even if they are not included in legislation because judges “have a special affinity with morality... This vested in the legal system extraordinary powers...”
Posner objected. The claim that everything is justiciable and that everyone can have standing in cases involving human rights leads to judicial despotism. It upsets a vital and delicate balance between the legislative, executive and judiciary branches of government, setting up the judiciary as the final arbiter.
THE DIVISION between these two approaches has its roots in differing conceptions of human rights. Human rights activists treat rights as abstract platonic universals vested with the sacred halo of the law. But such universals, no matter how well formulated, are inevitably vague and therefore require constant interpretation. As Barak conceded the “human dignity and freedom” right is “a complex principle.” But he believed it can be based on “the freedom of each person to fashion his personality.”
No one can define, however, what such “freedom” means exactly; what are its contents, extent and limitations? Who exercises it and under what constraints? Tomes could be written on what is meant by “personality” and “the freedom to fashion it.” A very complex internal process, it is hard to fathom and impossible to codify. Yet Barak and his followers insisted on making such a complex and vague notion as individual freedom “the principle right” from which all other rights derive.
This very vagueness, however, makes interpretive judges the real legislators of such rights. A dogmatic adherence to abstract human rights enforced by judicial activism therefore curtails the freedom of legislators and nullifies democratic choice.
An abstract conception of human rights leads, moreover, to a divorce from reality. A Barak disciple, Prof. Alon Harel asserted that in 50 years people will look back at our obsession with terrorism “as we now look at those who engaged in witch-hunts.”
Terrorism being such a bugaboo, there is no justification, he believes, to deny full protection even to “ticking bombs,” to terrorist suspects who possess information that could help prevent the slaughter of innocents, but would not divulge it unless forced to do so by extreme pressure, even torture.
Even pragmatists like Posner objected to having the law sanction torture. Posner suggested a pragmatic compromise: Prosecutors should sometimes ignore the use of torture by law enforcers if they are convinced that it was the only way information could be extracted that would save lives. “I do not recall,” he said “many people being killed in the last 50 years by witches, but thousands have been killed by terrorists...I am amazed to hear such a dismissal of the danger of terrorism from a professor in a university that was attacked by terrorists. I think it is irresponsible...”
Is this debate between these two schools on how to handle a real terrorist threat relevant to the choice of a candidate to the US Supreme Court who mostly likely embraces the views of the very “liberal” school? Judge for yourself.
The writer is director of the Israel Center for Social and Economic Progress.