Opinio Juris

As our Boumediene instant symposium gets underway, I thought it might be interesting to note that the Israeli Supreme Court has just upheld the Incarceration of Unlawful Combatants Law, which permits the indefinite detention of a person who does not qualify for POW status and "who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel." From Ha'aretz:

The Supreme Court yesterday upheld the constitutionality of the law allowing for the detention of "unlawful combatants," which Israel uses to hold Hezbollah fighters.

Supreme Court President Dorit Beinisch and Justices Edmond Levy and Ayala Procaccia rejected an appeal by two Gazan Palestinians who were detained after their involvement in terror activity on behalf of Hezbollah was proved.

The Unlawful Combatants Law authorizes the state to detain foreign nationals who belong to terror organizations or have participated directly or indirectly in hostile actions against the State of Israel.

Its goal is to prevent their continued activities.

Beinisch wrote in the verdict that although the law involves substantial harm and the suppression of personal freedom through administrative detention, the harm is proportional.

She noted that it was passed in a "harsh security reality" that justifies the violation of to personal freedom.

"The law's harm to the constitutional right to personal freedom, although substantial, is no greater than necessary," Beinisch wrote.

"Therefore, we have concluded that the law meets the criteria of the limitations ruling and there is no constitutional grounds to intervene in it."

The Unlawful Combatants Law requires a District Court to determine every six months whether a prisoner's release "will not harm State security" or whether "there are special grounds justifying his release"; the court's decision can then be appealed to a single judge of the Supreme Court for review. Scholars question, however, whether the Law's review procedures adequately protect prisoners' rights. Here is what Ron Dudai of SOAS had to say two years ago, when the Israeli Supreme Court first upheld the detention of "unlawful combatants":

Yet how powerful can this judicial review be? Not only does the Illegal Combatants law create a new category not recognized in international law, it reverses the burden of proof. Once an order is signed by the Chief of Staff, the burden of proof is on the defendant: he has to prove to the court that he is not an enemy combatant. Moreover, he is expected do this when the charge against him is based solely on classified evidence, which he is barred from examining and is therefore unable to challenge. One of the defendants told the court he was arrested in his house, for no reason, and added that if he were exposed to the evidence against him he would be able to respond. But that, of course, did not happen. After the defense lawyers argued their case, they and their clients had to exit the courtroom, leaving the security services’ representatives to reveal their secret evidence to the judge.

Food for comparative thought.

First the judge who felt "badgered, beaten, and bruised" by prosecutors for trying to protect Khadr's rights was removed from the case "for personnel reasons." Now it turns out that Khadr's interrogators were "instructed" -- read: ordered -- to destroy their notes, lest anyone ever find out that Khadr had been tortured or mistreated:

Navy Lieutenant Commander Bill Kuebler said in a statement sent to reporters he considers the notes crucial to the defense of his client, Canadian Omar Khadr, during his upcoming murder trial by a special military tribunal at the US naval base.

Kuebler said the instructions were handed down to interrogators from the US Department of Defense as part of a standard operating procedure or "SOP" directive that he obtained from prosecutors last week.

If they were carried out, US interrogators may have "routinely destroyed evidence" that might have been used to defend the Khadr and other detainees, Kuebler charged.

"If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar's lawyers of key evidence with which to challenge the reliability" of alleged confessions made to military interrogators, Kuebler said.

He cited in particular one passage of the directive to military interrogators stating that "this mission has legal and political issues that may lead to interrogators being called to testify."

"Keeping the number of documents with interrogation information to a minimum can minimize certain legal issues," the policy statement said, according to Kuebler.

Yes, it certainly can. So can suborning perjury and fabricating evidence -- but that doesn't make them good ideas.

Can we please stop pretending that the (un)fairness of military commissions is still open to rational debate?