Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court

By Krebs, Shiri | Vanderbilt Journal of Transnational Law, May 2012 | Go to article overview

Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court


Krebs, Shiri, Vanderbilt Journal of Transnational Law


ABSTRACT

All around the world, hundreds of individuals are constantly subjected to administrative detentions designed to prevent them from committing future atrocities. Generally, the main protection against arbitrary and unjustified administrative detentions is judicial review. Nonetheless, judicial review of administrative detention proceedings suffers from inherent difficulties and is typically based on ex parte proceedings and secret evidence. In spite of these difficulties and based on a few renowned cases, it is widely accepted in the scholarly debates that the Israeli judicial review model is robust

and effective. Therefore, prominent international law scholars often recommend the adoption of this model in various other states, including the United States, and claim that it is best suited to fulfill international human rights law requirements. Nevertheless, as this study reveals, out of the 322 cases that were decided by the Israeli Supreme Court from 2000 to 2010, not even a single case resulted in a release order or in a rejection of the secret evidence.

This research provides, for the first time, a systematic empirical analysis of these 322 cases. Since the judgments in this field are usually short and laconic, providing very little information on the process, the case law analysis is complemented with in-depth interviews with all of the relevant stakeholders: Israeli Supreme Court Justices, defense lawyers, state attorneys, intelligence officers, and Palestinian detainees. The research demonstrates a meaningful gap between the rhetoric of the few renowned cases and actual practice. In particular, it reveals the difficulties courts face in attempting to challenge secret evidence. Furthermore, the research discovers the formation of "bargaining in the shadow of the Court" dynamics and the adoption of alternative dispute resolution methods by the Court, such as mediation and negotiation.

Put together, the inclusive case law analysis and in-depth interviews provide extensive information on the actual practice and inherent weaknesses of judicial review of administrative detention cases; they lift the veil of secrecy that currently overshadows this sensitive and important judicial process; and they cast doubt on arguments that Israel's detention model is one that should be emulated by other countries.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. ADMINISTRATIVE DETENTIONS: DEFINITIONS AND
     CURRENT DEBATES
III. SECRET EVIDENCE, JUDICIAL REVIEW, AND THE
     ROLE OF THE COURTS
     A. Judicial Review as a Counter-Majoritarian
        Check on Executive Power
     B. Judicial Management Model vs. Special
        Advocate Model
 IV. ADMINISTRATIVE DETENTIONS IN ISRAEL
     A. Administrative Detentions in Israeli
        Territory
     B. Administrative Detentions of Palestinians
        in the Occupied Territories
     C. Administrative Detentions of Aliens
  V. THE JUDICIAL REVIEW PROCESS
     A. Act I: The Reasoned and Renowned
        Judgments
     B. Act II: The Actual Practice of the Court--All
        of the Relevant Decisions
        1. The Outcomes of the Cases
        2. Rate of Withdrawals
        3. The Length of the Decisions
        4. The Length of the Detention
        5. The Nationality of the Detainees
        6. The Court's "Recommendations" to the
           Parties
     C. The Correlation Between Criminal and
        Administrative Detentions
 VI. LIFTING THE VEIL OF SECRECY: "BEHIND THE SCENES"
     OF THE JUDICIAL REVIEW PROCESS
     A. Secret Evidence, Ex Parte Proceedings,
        and the Judicial Management Model
        1. Judicial Management vs. Special
           Advocates
     B. Bargaining in the Shadow of the Court
     C. The Differences Between the Three Detention
        Regimes
     D. "Law in the Books" vs. "Law in Action"
     E. Transparency and Procedural Justice
VII. CONCLUSION
APPENDIX I: METHODOLOGY
     A. 

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