JURIST Guest Columnist Amos Guiora
of the University of Utah College of Law says that if the US had followed Israel's lead in taking an aggressive approach to judicial review of executive action, such controversial Bush Administration policies as torture, military commissions, and indefinite detention would have been subjected to the strict scrutiny they so deserved.....
udicial review is judicial review. It is all or nothing. Sitting as the High Court of Justice, the Israeli Supreme Court proved that once again this week. The facts of Ashraf Abu Rahma vs. The Judge Advocate General
(HCJ7195/08) are simple: the Israel Defense Forces' Judge Advocate General decided to order a disciplinary hearing rather than a criminal trial for a brigade soldier who fired rubber bullets at a handcuffed Palestinian. In response to this judgment, human rights groups filed a petition to the High Court arguing that the decision was unreasonable and that the brigade commander must be brought before a court martial.
The Court held that the JAG’s decision was not reasonable, thus clearly emphasizing a powerful lesson: the executive cannot operate outside the boundaries of the law, especially when it involves the use of military force. This lesson should reverberate loud and clear in the US courts, where the judiciary should end its near automatic deference to executive determinations regarding the use and application of force.
Sitting as the High Court of Justice, the Israeli Supreme Court engages in the most robust form of judicial review of the executive, which includes the Israel Defense Forces. The review is a clear manifestation of checks and balances and it reflects the importance and vitality of the separation of powers. The Court’s self-imposed mandate is to ascertain the ‘reasonableness’ of the executive’s decision. This does not mean that it ‘steps in the shoes’ of the decision maker; the Court does not claim expertise in all facets of executive decision making. It does, however, mean that applying reasonableness as a measuring stick ensures an analysis that goes beyond the scope of the actual decision. That is, the Court’s analysis of the specific decision at issue extends to the decision’s larger implications.
Comparativism is always problematic because judicial and political regimes are inherently different. Nevertheless, I have long argued that if the US Supreme Court were to adopt an approach of active (i.e. aggressive) judicial review that's not predicated on deference to the executive, many of the Bush Administration policies (such as torture, military commissions, indefinite detention) would have been subjected to the strict scrutiny and bright lights they so deserved. Critics of my proposal respond that the American judicial system is different than the Israeli system, making the comparison untenable. Although the systems are indeed different, there are important lessons to learn from the Court’s decision regarding the Judge Advocate General’s decision.
The executive, regardless of rank and post, is not immune from judicial review. Deference does not benefit the state or the individual petitioner. If the Israeli Supreme Court had taken the track of judicial deference, in all probability the JAG's decision would have been upheld, thereby minimizing the gravity of the commander's decision. Only by directly engaging the executive in active strict scrutiny could the Court hold that the JAG had fundamentally erred.
Some Israeli commentators have suggested that the JAG’s legal opinions should be seen as beyond the High Court’s purview. This suggestion is extraordinarily problematic for it implies that judicial review should not be universally applied because some decisions are ‘off limits’.
Nothing is more dangerous to a democracy than an ‘unfettered executive’. Justice Jackson was both prescient and correct in Youngstown Sheet and Tube Co. v. Sawyer
. His concern was also timeless. This principle must be applied across the board. Encouraging judicial review of some executive branches but not others will do no more than ensure unequal justice under law. The JAG’s decision must be subject to review in the same vein as that of any other executive decision maker. The essence of active judicial review is to protect the unprotected and to ensure that the executive acts within reasonable boundaries as broadly defined.
By ruling that the JAG did not act within these boundaries, the Court is sending a loud and clear message: the executive is subject to strict judicial review and it cannot hide behind the cloak of executive decision making. That powerful and compelling message should be adopted by the US Supreme Court, particularly when striking a balance between the legitimate rights of the individual and the equally legitimate national security rights of the State. The free pass that the Supreme Court has historically granted the executive in national security cases (Korematsu v. United States
being the poster child) has, in the long-run, harmed the individual and the state alike.
In effectively protecting the individual from the executive, the Israeli decision reinforces the importance of judicial review. This protection is ultimately in the best interests of society. Just as the JAG could not – and should not – escape judicial review, no US Administration policy should be immune from strict judicial scrutiny.
This is the ultimate lesson to be applied.Amos N. Guiora, a professor of Law at the University of Utah's SJ Quinney College of Law, served for 19 years in the Israel Defense Forces' Judge Advocate Generals Corps. His recent books include "Constitutional Limits on Coercive Interrogation" and "Fundamentals of Counterterrorism" and "Global Perspectives on Counterterrorism." A forthcoming volume, "Freedom from Religion", is slated for publication by Oxford University Press on October 1. His e-mail is email@example.com.