I was interested, and encouraged, to see that among the 23 ‘amicus curiae’ (friend of the court) briefs presented to the U.S. Supreme Court in support of the habeas corpus petition submitted by Gitmo detainees Boumediene and Al-Odah was this one (PDF), sent in by seven Israeli law professors, one of whom has done his military reserve service as a military judge since 1994, and another who was previously President of the IDF’s tribunal for the Southern (Gaza) Command.
The Boumediene ruling (PDF) was, of course, the one that the Supreme Court delivered yesterday that stated that yes, the detainees held at Guantanamo do indeed have the right to file habeas corpus petitions to the civilian US courts.
If you go to p.17 of the PDF file of the Israeli lawyers’ amicus brief (p.2 of the original doc), you can read the summary of the argument they make. It says:
- Judicial review of executive and military detention, the indispensable core of habeas 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, independent judicial review of the factual basis for their confinement. Israeli experience
demonstrates unambiguously that providing such review to Guantánamo detainees would not be “impracticable and anomalous.”
… The safeguards provided under Israeli law, though denied to Guantánamo detainees, are not only workable but also are essential components of the rule of law. No process that lacks these core features can be considered an adequate substitute for time-honored forms of judicial review, such as the traditional writ of habeas corpus. Israeli authorities, executive as well as judicial, support these rights as necessary elements of the response to terrorism in a resilient democratic society governed by law.
Bottom line: the “CSRT” review system that the DOD established in Guantanamo provided even fewer safeguards for the rights of those detained than the hearing system used by Israel in its lengthy and often challenging administration of the occupied territories… And these lawyers tell us that these detainee rights are “necessary elements of the response to terrorism in a resilient democratic society governed by law.”
Human rights organizations have frequently criticized several aspects of the Israeli system for military-judicial review of detention orders– including the ruling the Israeli Supreme Court gave some years ago that
states that “moderate pressure” is a permitted way of extracting “information” and does not taint evidence presented to these review bodies. allowed those engaging in the crime of torture to provide an ill-defined “necessity” defense for their acts. (See first comment below.) So I would not say that the Israeli system is anywhere near perfect.
But it is sobering to hear these Israeli specialists telling our Supreme Court how much worse the Guantanamo system is.