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| ADL Op-Eds | Civil Rights |
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Balancing Civil Rights and Security In Israel and America
By Abraham H. Foxman
National Director, Anti-Defamation League
This article originally appeared in The New York Sun on
July 9, 2004
The rule of law requires democratic nations to formulate a delicate balance between national security and civil liberties. In the war against terror, this task is difficult and demanding. On June 30, in striking that balance, the Supreme Court wisely counseled that "Regarding the state's struggle against terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and spirit."
These are not the words of the American Supreme Court, but those of Israel's Supreme Court in a case challenging the security fence being constructed along the West Bank by Israel's army in order to thwart Palestinian suicide bombers, who have killed over 800 civilians in recent years.
Describing its ruling as showing a proper "balance [between] security considerations and humanitarian ones," Israel's high court ordered that certain portions of the fence be rerouted so as to reduce harm to Palestinians cut off from lands they need. Soberly aware that compliance with this order could hinder Israel's defense against incursions by Palestinian terrorists, the court nevertheless concluded that "this reduction in security must be endured for the sake of humanitarian considerations."
All this from a country that the world has demonized as a "racist" and "apartheid" state. It is not. Israel is a functioning democracy, with a judiciary that has worked with other branches of government to make sure that the country remains both safe and free. In the face of relentless terrorist attacks on its citizens, Israel's court has demanded that all security measures be within the bounds of law.
But it is equally important to note what Israel's Supreme Court did not say. It did not say the fence was a political fence, but a security fence. Nor did it try to evaluate the legality of the fence in the abstract. Instead, it considered the threat of terrorism and the burden upon the Palestinians, and it provided a nuanced resolution to a complex solution.
Coincidentally, the American Supreme Court struck a similar balance in its ruling that Taliban and Al Qaeda fighters held at Guantanamo Bay, Cuba, have the legal right to challenge their detention in federal court. On the same day, the court also ruled that even enemy combatants - who are detained in America for security purposes by presidential order - have a constitutional right to contest their custody before a neutral decision-maker. Justice O'Connor wrote the court's controlling opinion and reminded us that "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."
The lesson of these rulings is extremely important and worthy of repeating. Democracies that struggle to protect themselves from terrorists who would destroy life and the very foundation of free society must undertake special measures to succeed in their fight. As the American Supreme Court has repeatedly stressed, no constitutional form of government that seeks to protect fundamental liberties can be reduced to a "suicide pact." Civil liberty presupposes that governments will maintain public order because without it civil liberty would be lost in the chaos of extremism.
Thus, America may detain enemy combatants within American borders and restrict access to the civilian criminal justice system and Israel may build a barrier against suicide bombers that runs through the territories. There are limits to the principle of self-preservation, however. The rule of law requires that no person be imprisoned without a meaningful opportunity to challenge his confinement and that humanitarian considerations necessarily weigh in the strategic balance. In sum, whether individuals are being fenced in or fenced out, any just response to terrorism must be proportionate to the threat of harm.
The Anti-Defamation League, founded in 1913, is the world's leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry.
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