Judicial Review of National Security
Judicial Review of National Security
Senior Legal Officer and Coordinator (Legal and Criminal Justice Group)
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Abstract
In recent years, countries around the world introduced numerous national security programs and military campaigns. Yet, very few of these measures, despite the complex legal questions they raise, have been the subject of rigorous judicial review, much less so in a time that could actually affect the situation on the ground. There are good reasons for this judicial absence, which are discussed. Nevertheless, the absence of real-time review has enormous effect on both human rights and national security. The Israeli Supreme Court provides an excellent case study of a different approach. Its activisism in national security matters is well-known. What is less known is how the Court actually rises to this challenge. This book shows how the Court developed unconventional judicial review tools and practices such as advice-giving and signaling. These tools allowed it to provide judicial guidance to the Executive in real time, often when forces are still fighting terrorism or hostages are being taken. Its aim is to demonstrate that courts could play a much more dominant role in reviewing national security. The most important tool that allowed the Israeli Court to provide such review is intensive real-time inter-branch dialogue with the Executive. The book does not suggest that this model could be copy-pasted anywhere else—it cautions against it. Its aim is to show that if one Supreme Court was able to provide rigorous judicial review of national security in real time, we should reconsider the conventional wisdom regarding the limits of judicial review of national security.
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Front Matter
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1
Decisions Made in Real Time
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2
Judicial Review in Real Time—Use of Interim Decisions
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3
Supreme Court Practice and Dialogue
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4
Deviating from the Rules of the Game
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5
Recommendations
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6
Signaling in Judgments
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7
Dialogue on Policy Application—I
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8
Dialogue on Policy Application—II
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9
Dialogue with Military Authorities
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10
Dialogue with the Attorney General’s Office
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11
Dialogue with Petitioners and Human Rights Organizations
- 12 Dialogue with Victims of Terrorism, Families of Soldiers, and Bereaved Families
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13
Judicial Review through Dialogue in Israel
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14
Judicial Review “under fire”
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15
Benefits of the Use of Advisory Dialogue
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16
The Use of Advisory Dialogue—Disadvantages and Risks
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17
Conclusion—Judicial Review and National Security
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End Matter
- 245Appendix A Judicial Panels in Judgments Where Fundamental Decisions Constituting Precedents against the State Were Given 1996–2005
- 246247248249Appendix 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
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