Two Different Approaches to Terrorism By Jay Sekulow
aclj.orgThe United States and the nation of Israel have a unique and everlasting bond. And the two place a top priority on one of the most important issues of our day - the ever-increasing danger of terrorism in an uncertain world.
But what's interesting is how the top courts in each country approached this issue - from opposite ends of the spectrum.
In a 5-4 decision, the Supreme Court of the United States declared that detainees being held by the U.S. military at Guantanamo Bay, Cuba do have constitutional rights to challenge their detention in U.S. federal courts.
It's a decision that opens the door to many unanswered questions that could ultimately result in the release of some of these foreign terrorism suspects.
Writing for the majority, Justice Anthony Kennedy said: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
But the high court in Israel came to a different conclusion.
Just hours before the Supreme Court handed down its troubling decision, the Israeli Supreme Court Supreme Court endorsed the administrative detention of 'unlawful combatants' by rejecting a petition against Israel's Unlawful Combatants Law by two Palestinian security detainees.
The Israeli law allows authorities to hold without trial foreign nationals engaged in terrorist activities against Israel.
The Israeli high court said that the purpose of the 6-year-old law is “worthy and based on the public’s need, which may justify violating the personal freedoms." Consider that last phrase: "which may justify violating the personal freedoms."
"The incarceration law of unlawful combatants (terror operatives that do not abide by the Geneva Convention) was legislated based on the harsh security reality of murderous terror threats, which have been plaguing Israel, its citizens and residents indiscriminately," wrote the judges.
The high court concluded: "The law’s security objective is to remove unlawful combatants from the cycle of terror organizations operating against Israel." The Israeli high court also made it clear that the law does not apply to Israeli citizens and residents but only to what it called "outside sources that pose a threat to the country’s security."
Back here at home, federal prosecutors and the court system is still grappling with what the Supreme Court decision giving a judicial "green light" to terrorism suspects means and how it will be implemented.
But the fact is, the U.S. decision was a big mistake. A disturbing development that was put into the proper perspective by Justices who dissented.
In a stinging dissent, Justice Antonin Scalia said "America is at war with radical Islamists," and maintained the Court’s decision "will make the war harder on us. It will almost certainly cause more Americans to be killed," he wrote. And he added that the "nation will live to regret what the court has done" with this decision.
Furthermore, Chief Justice John Roberts criticized the majority decision for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Chief Justice Roberts concluded that the majority decision amounted to nothing more than a judicial power play: "....this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."
Both the U.S. and Israel have so much in common. At the top of the list: battling Islamic terrorism.
The Israeli approach makes sense and reflects the proper action required when it comes to dealing with suspects whose intent is clear: to destroy those who embrace freedom.
Unfortunately, the majority of the U.S. Supreme Court is headed in the wrong direction when it comes to handling these dangerous detainees. Justice Scalia understands what's at stake. America is at war with radical Islamists. So is Israel.
With these latest court decisions, there's now a clear distinction on how each country is approaching the threat from a judicial standpoint.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), a Washington, DC-based law firm focusing on constitutional law.
