"Judicial Review of National Security," by David Scharia

Published by Oxford UP (2015)

Reviewed by His Serenity, The Book Review Editor

David Scharia is an Israeli national security lawyer with experience prosecuting Israeli terrorism cases before the Israeli courts, including service on the Attorney General of Israel’s legal staff. He has been a scholar-in-residence in national security at Columbia University, and is currently with the UN Security Council’s Counterterrorism Committee Executive Directorate.

Judicial Review of National Security is Scharia's in-depth study of, as the title says, judicial review of national security — specifically with respect to Israel and its court system, however, and not on a broader or comparative basis. It is a thorough, polished study -- very well written and organized -- that proceeds largely from the perspective of how Israeli courts interface and communicate with the political branches of government in the "real time" of a crisis, and with Israeli defense and security agencies. The book is attentive not just to the message communicated about some particular issue (interrogation; house demolitions, etc.), but also to the difficult institutional problems of the proper role of the judiciary in a democratic state in which the judiciary does not have executive power. Hence the focus in the various chapters on the distinct roles the Israeli Supreme Court plays, and its distinctive mechanisms for communicating its views yet often without mandating or ordering — instead, though “advisory dialogue” and recommendations that take place in real time, rather than awaiting a long-after-the-fact binding court opinion.

The most striking part of this inter-branch dialogue between the Israeli Supreme Court and other parts of government, at least to observers from outside Israel, is that it takes place as an advisory process in real time - in the midst of ongoing security operations:

In a nutshell, this book shows that the most important tool that allow[s] the Israeli Supreme Court to provide judicial review on all national security matters and to do so in real time is intensive real time inter-branch dialogue with the Executive, the Attorney General, the intelligence community, and the military … through this dialogue the Court [has been] able to provide meaningful even though not always conventional review to the most difficult dilemmas human rights law and international humanitarian law have [had] us face in the twenty-first century.

It's a remarkable system. It's also one that, most observers are likely to think, is a corollary of the very special role that the Israeli Supreme Court has played in Israeli society and its political life from the very beginning. It has a legitimacy that is different and far most capacious than that attaching to most countries’ high courts, including in places where the highest constitutional court has enormous prestige and legitimacy, such as the United States and its Supreme Court. The constitutional systems of many countries, including the United States, do not have that capaciousness, and even in places where the high court’s legitimacy is very strong, it is typically very strong precisely because it operates in a bounded constitutional sphere that doesn’t permit these kind of “real time” advisory roles.

So readers of this (nonetheless very interesting) book are likely to see it as a case study, yes — but will wonder to what extent it is revelatory of both the practices and possibilities of judiciaries elsewhere in reviewing ex ante or post hoc their country's national security practices. Scharia is aware of this dangling question, and addresses it directly in the Introduction:

I hope that after reading this book you will come to the conclusion that judicial review in real time or in close proximity to the adoption of a certain national security is feasible and that deference to the Executive in national security matters is not always a must. Whether a more rigorous and dynamic Court matches the constitutional system of your country is a different question, which I cannot answer. I will not suggest that this model could be copy-pasted to any other system. In fact, I would caution against it. The differences between legal systems are far too big for such a simplistic approach. However, the fact that one Supreme Court was able to provide meaningful judicial review of national security policies in real time requires some further thinking and perhaps a reconsideration of the conventional wisdom regarding the limits of judicial review of national security.

In that case, this book, which is entirely inward-looking toward the Israeli case, calls out for a companion volume that would be genuinely comparative. For myself, I remain skeptical that the Israeli model can travel very easily even to other constitutional democracies that have the separation of branches of government. And perhaps least of all to the United States, given its profoundly different and deeply rooted constitutional understandings of the separation of powers.

(Kenneth Anderson is otherwise known as His Serenity, Book Review Editor of Lawfare.)