Judging Torture: Lessons from Israel
Nourafchan, Nicolo, Georgetown Journal of International Law
With FOREWORD by JUDGE STEPHEN R. REINHARDT
FOREWORD REWORD I. INTRODUCTION AND OVERVIEW A. Introduction B. Historical Overview: Executive Abuses and Judicial Indifference C. Israel: The Paradigm Test Case D. Limitations E. Israel: Theoretical Model II. THE CASES A. Arar v. Ashcroft 1. Procedural Posture 2. Petitioner's Arguments 3. Defendant's Arguments 4. The Decision i. Confidentiality ii. Justiciability iii. Proportionality iv. International/Comparative Law v. Assessment B. Public Committee Against Torture in Israel v. State of Israel 1. Petitioner's Arguments 2. Defendant's Arguments 3. The Decision i. Confidentiality, ii. Justiciability iii. Proportionality iv. International/Comparative Law v. Assessment III. COMPARATIVE ANALYSIS IV. CONCLUSIONS AND PRESCRIPTIONS
JUDGE STEPHEN R. REINHARDT ([dagger])
Nicolo Nourafchan's Article raises fundamental questions relating not only to torture, but to the role of the Judiciary in the post-9/11 era, in which everything is novel. The "war" in which we are engaged may well have no finite end and there are certainly no governments with which to negotiate a peace treaty. The two most prominent courts in democratic nations to face these issues may deal with them in differing ways, not just because the terrorism they encounter differs in important respects, but because their views of the role of the judiciary and, to some extent, their constitutional values differ as well. The Israeli judicial system is younger, fresher, and more assertive than that of the United States. It does not hesitate to take command of any problem involving laws, values, or human rights. The U.S. system, on the other hand, is more experienced, cautious, and hesitant to assume functions that it believes belong to the Legislative and Executive Branches of government. Each judiciary has something to learn from the other, although the Israeli system under the leadership of former President (that is, Chief Justice) Aharon Barak--Israel's John Marshall and Earl Warren combined--has built on the U.S. Constitution but has sought to go further. Nowhere is this more true than in the case of torture. I would hope that we in the United States will recognize, as has Israel, that in wartime, more than ever, we are dependent on a strong independent judiciary that will not surrender its authority or hesitate to exercise it, especially when the preservation of our constitutional values is so essential.
"At times, the price of truth is so high that a democratic society is not prepared to pay." (1)
--Aharon Barak, President Emeritus of the Supreme Court of Israel
I. INTRODUCTION AND OVERVIEW
On September 25, 2002, Maher Arar was returning to his home in Canada from a family vacation in Tunisia. (2) While transferring flights at John F. Kennedy Airport, Arar was detained and interrogated by American authorities based on a tip they had received from Canadian intelligence sources. After a short while, Afar was chained, shackled, and taken to the Metropolitan Detention Center in Brooklyn where he was placed in solitary confinement. Following over a week of harsh interrogations, in which Arar was denied any contact with the outside world (including his lawyer), he was placed on a small private jet in a New Jersey airfield and rendered to Syria.
For the next ten months, Arar was "locked in a damp, cold, underground cell the size of a grave" measuring only "six feet long, seven feet high, and three feet wide" in the Palestine Branch of Syrian Military Intelligence. (3) While there, Arar "was interrogated for [eighteen] hours per day" and was repeatedly "subjected to physical and psychological torture," (4) including being beaten by a two-inch thick electric cable, and being deprived of food, sleep, exercise, and sanitation for weeks at a time. …