By GABRIELLA BLUM AND MARTHA MINOW
N Y Times October 18, 2006
BEFORE ENACTING the ``Detainee Bill " (otherwise known as the Military Commissions Act) two weeks ago, Congress should have spent more time learning from the Israeli experience. Compared with Israel's security measures during a long and difficult experience with terrorism, the US Congress has gone too far in its willingness to compromise human rights and civil liberties. Security considerations, as legitimate and forceful as they are, do not justify such excessive measures, as the Israeli practice demonstrates.
Israel enacted its own Unlawful Combatants Law in 2002, with the purpose of providing a domestic legal framework for the prolonged detention of terrorists. Rejecting the terrorists' status as prisoners of war, the law instead provides for holding them ``until the end of hostilities." From its inception, it was intended not so much for the detention of Palestinian terrorists, who are either tried as criminals or held in administrative detention, but for others -- mostly from Lebanon or other Arab countries.
Unlike the US bill, the Israeli law provides for a first hearing of the detainee before a high-ranking officer immediately upon his detention; a detainee has a right to legal representation; a first judicial review of the detention warrant has to take place in a district court no longer than 14 days after the first arrest, and every six months thereafter; and the detainee can appeal his detention before a Supreme Court judge. The court must revoke the detention order if it finds that the release of the detainee would not threaten national security or if there are other special reasons that justify it.
Regulations promulgated under the law stipulate conditions for detention. These include provisions on medical treatment, clothing, food (including the right to purchase items in a canteen), outdoor exercises, religious practices, correspondence with the outside world, and even cigarettes. Unlike the US bill, in Israel, the detainee also has a right to meet with representatives of the International Committee of the Red Cross. The chief of general staff can permit other visitors, such as family members.
Most of the judicial safeguards and conditions of treatment stipulated under the Israeli law are absent from the American law. Judicial review by courts has been replaced by military commissions; appeal is limited to one court, the US Court of Appeals for the District of Columbia Circuit, which would be barred from applying international humanitarian law to an appellant detainee's situation. Congress has specified that the president -- not the courts -- is the first and final arbiter on the interpretation of international humanitarian law.
Again, unlike the law in Israel, the US law gives government officials immunity from prosecution for any maltreatment of detainees that does not amount to ``grave breaches" under the Geneva Conventions of 1949. This is especially striking, given the exposure of abuses at Abu Ghraib and Guantanamo Bay and of the rendition of detainees to countries known to engage in torture.
Neither the Detainee Treatment Act of 2005 nor the recent Military Commission Act provide for visits by Red Cross delegates . These omissions are telling. Where the administration has allowed such visits to Guantanamo , it deemed such permission a goodwill gesture and not a legal obligation.
In each of these respects, the law in Israel is more protective of individual rights -- without resulting in security risks . It would have been unthinkable for any Israeli governmental lawyers to devise a legal framework that would strip the courts of their powers of judicial review.
The cost of overreaction by the US Congress is enormous. The Congress has abandoned constitutional commitments without evident need and made the commitments to individual rights and fair treatment dispensable. Moreover, the US Military Commissions Act sends to other countries facing terrorism the message that effective judicial review is null and void once the security alarm is sounded. It demonstrates a level of panic and irresponsible abandonment of principles that other nations, facing similar dangers, have avoided.
As bad as this may be for America, it is potentially far worse for countries that look to the United States for leadership. Now, the US example will encourage other nations to throw away rights just when they are sorely tested.
Gabriella Blum is a visiting assistant professor at Harvard Law School and a former legal adviser for the Israel Defense Forces. Martha Minow is the Jeremiah Smith Jr. Professor of Law at Harvard Law School.