Judicial Review of National Security

by David Scharia

Overview

In recent years, countries around the world introduced numerous national security programs and military campaigns. Despite the complex legal questions they raise, very few of these measures have been the subject of rigorous judicial review. Nevertheless, the absence of real-time review has had an enormous effect on human rights, rule of law, and on national security. The Supreme Court of Israel provides an excellent case study of a different approach, which allows judges to assess military action in real-time and to issue non-binding results of their evaluation. This raises the question: How was the Court actually able to uphold this challenge? In Judicial Review of National Security, David Scharia explains how the Supreme Court of Israel developed unconventional judicial review tools and practices that allowed it to provide judicial guidance to the Executive in real-time. In this book, he argues that courts could play a much more dominant role in reviewing national security, and demonstrates the importance of intensive real-time inter-branch dialogue with the Executive, as a tool used by the Israeli Court to provide such review. This book aims to show that if one Supreme Court was able to provide rigorous judicial review of national security in real-time, then we should reconsider the conventional wisdom regarding the limits of judicial review of national security.

Product Details

ISBN-13:	9780199393381
Publisher:	Oxford University Press
Publication date:	10/30/2014
Series:	Terrorism and Global Justice Series
Sold by:	Barnes & Noble
Format:	eBook
Pages:	278
File size:	2 MB

About the Author

Dr. David Scharia (PhD, LLM) is the Coordinator of the Legal and Criminal Justice Group at the United Nations Security Council Counter Terrorism Committee Executive Directorate (CTED). Before joining the United Nations, Dr. Scharia worked at the Supreme Court division in the Attorney General office in Israel where he was lead attorney in major counter-terrorism cases. Dr. Scharia served as a Member of the experts' forum on "Democracy and Terrorism" established by Israel leading think-tank the Israel Democratic Institute. He was National Security Scholar-in-Residence at Columbia Law School and is a member of the professional advisory board of the International Institute for Counter Terrorism (ICT). Dr. Scharia is a frequent writer and lecturer on national security law issues. His articles have been published in the most prestigious forums including the Harvard National Security Journal. This is his second book.

Table of Contents

Introduction Chapter One: Decisions Made in Real Time Chapter Two: What we know about advisory dialogue and courts Chapter Three: Judicial Review in Real Time - Use of Interim Decisions Chapter Four: Supreme Court Practice and Dialogue Chapter Five: Deviating from the Rules of the Game Chapter Six: Recommendations Chapter Seven: Signaling in judgments Chapter Eight: Dialogue on Policy Application - I Chapter Nine: Dialogue on Policy Application - II Chapter Ten: Dialogue With Military Authorities Chapter Eleven: Dialogue With the Attorney General office Chapter Twelve: Dialogue With Petitioners And Human Rights Organizations Invitations to override Chapter Thirteen: Dialogue with Victims of Terrorism, Families of Soldieries and Bereaved Families Chapter Fourteen: Features of Inter-Branch Dialogue in National Security Cases in Israel Chapter Fifteen: Judicial Review in Real Time Chapter Sixteen: Benefits of the Use of Advisory Dialogue Chapter Seventeen: The Use of Advisory Dialogue - Disadvantages and Risks Chapter Eighteen: Conclusion - Judicial Review and national security Appendix A Judicial panels in judgments where fundamental decisions constituting precedents against the state were given Appendix B Dates of Principal Rulings Comprising Precedents Against the State, in View of the Number of Israelis Injured in Terrorist Attacks 1996-2005 Bibliography Index

Editorial Reviews

"Most observers of national security programs and military actions recognize that executive leaders and military commanders at times have taken actions that harm human rights or exceed legal authorities. If courts have a say in such matters at all, judges' opinions often come too late to redress the wrongs that have occurred. In Judicial Review of National Security, David Scharia elegantly presents the experience of judicial review from modern Israel, where in many instances real-time judicial review has managed to temper the government's national security actions, benefiting human rights and the rule of law. The lessons Scharia deftly draws from Israeli history may inspire those hoping to bring judicial review values to other cultures." -William C. Banks, Director, Institute for National Security and Counterterrorism, Board of Advisors Distinguished Professor, Syracuse University College of Law

"Judicial Review of National Security challenges the conventional wisdom that courts cannot review national security measures in times of crisis. David Scharia persuasively demonstrates how one court, Israel's Supreme Court, has done just that — again and again. This book will forever change the debate about courts and national security." -David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center

"David Scharia's book is an important contribution on a difficult subject - judicial review of executive action on the most acute questions of national security and the rule of law. His examination of the practice and jurisprudence of the Israeli Supreme Court shines a light on its activist approach, not free from controversy and debate, but an exemplar of judicial engagement and real-time adjudication on pressing issues that reach to the heart of Israel's democracy and governance. This book makes that practice and jurisprudence more accessible and gives us a lens through which to view and assess it." -Sir Daniel Bethlehem QC, Barrister, London, Formerly, principal Legal Adviser of the UK Foreign & Commonwealth Office

"Judicial Review of National Security is Scharia's in-depth study of, as the title says, judicial review of national security - specifically with respect to Israel and its court system, however, and not on a broader or comparative basis. It is a thorough, polished study - very well written and organized" —LAWFARE

From the Publisher