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.
David Scharia is a Senior Legal Officer and the Coordinator of the Legal and Criminal Justice Group at the United Nations Security Council's Counter Terrorism Committee Executive Directorate (CTED), where he leads the group, strategizes its activities, and develops counter terrorism legal policy. Before joining the United Nations, Dr. Scharia was a First Senior Deputy at the Supreme Court division in the Attorney General office in Israel, where he was the lead attorney in major counter-terrorism cases. He also served as the representative of the Attorney General's office to the Law and Constitution Committee of the Israel Knesset in connection with preparation of counterterrorism legislation. Dr. Scharia is also on the international advisory board of several leading research institutions including the International Institute for Counter-Terrorism, the Research Institute for European and American Studies, and the Global Forum for Counter Radicalization.
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