Judicial review of national security / David Scharia
- Scharia, David
- New York : Oxford University Press, 2014.
- Physical Description:
- 1 online resource
- Terrorism and global justice series
- Machine generated contents note: 1.Decisions Made in Real Time -- Adjudication and National Security -- Judicial Dialogue under Fire -- Dialogue and Judicial Review -- A Short Historical and Legal Background---Israel 1995--2012 -- The Supreme Court of Israel and Review of Military and Counterterrorism Actions -- Developing the Database of Cases and Identifying Advisory Messages -- 2.Judicial Review in Real Time--- Use of Interim Decisions -- Introduction -- Timing and Its Effect on the Meaning of the Message -- Using Language to Convey Messages -- The Procedural Platform and Its Effect on the Significance of the Message -- Order Nisi -- Interim Order -- Case Studies -- Use of Violence in Shin Bet Interrogations -- Operation Rainbow -- The Use of Human shields -- "Neighbor Procedure" -- 3.Supreme Court Practice and Dialogue -- The Panel -- Invitation to Negotiate -- Case Study: The Gaza Flotila Raid -- Leaving Petitions Pending for the Purpose of Overseeing Their Application -- Written Comments and Verbal Comments -- Pointing Out a Problem -- Interim Decisions as Signals: Case Studies -- The Case of the Use of Violence in Shin Bet Interrogations -- Minority Opinion as a Signal -- The Case of House Demolitions -- Using Per Curiam Decisions as a Signal -- The Case of the Citizenship Law -- 4.Deviating from the Rules of the Game -- Holding a Hearing on a Theoretical Petition -- Holding a Hearing notwithstanding Res Judicata -- Holding a Hearing notwithstanding Res Judicata: The Targeted Killing Case -- Deviating from the Structure of a Hearing in a Petition and the Anticipated Schedule as Signaling -- Messages in Interim Decisions: Conclusion -- 5.Recommendations -- Introduction -- Recommendations for Legislation -- Recommendations for Application -- Recommendation for Application: The Case of Massive Detentions during Military Campaigns -- Recommendations during Hostilities -- Conclusion -- 6.Signaling in Judgments -- Signaling: The Case of Use of Violence in Shin Bet Interrogations -- "Positive Signaling": The Case of Detention of "Unlawful Combatants" -- Constitutional Pragmatism -- Constitutional Pragmatism in Real Time: The Case of Emergency Regulations -- From Signaling to Ruling: The Right to be Warned before Interrogation in Counterterrorism Investigations -- Judicial Sunset: The Citizenship Law -- 7.Dialogue on Policy Application---I -- Introduction -- Statements Advising the Executive: The Case of Incitement to Violence and Terrorism -- Imposing Conditions on the Application of Policy: The Case of House Demolitions -- 8.Dialogue on Policy Application---II -- Messages That Advise How a Judgment Is to Be Applied: The Case of the Separation Fence -- Transferring Messages of Application by Means of an Operative Order: The Cases of Use of Violence in Shin Bet Interrogations and of neighbor procedure -- Expressing Censure or Support regarding How the Executive Applies the Law: The Case of Failure to Report a Planned Terrorist Attack -- Conclusion -- 9.Dialogue with Military Authorities -- Introduction -- Educating the Military to Respect Humanitarian Law through Judgments -- Educating the Military: The Case of Major General Dan Halutz -- "Educating" the Military: The Case of Checkpoints in the Occupied Territories -- Judicial Review "Under Fire" -- Judicial Review "Under Fire"---Operation "Defensive Shield" -- Judicial Review "Under Fire"---Operation Rainbow -- Judicial Review "Under Fire"---Operation Cast Lead -- 10.Dialogue with the Attorney General's Office -- Relying on Attorneys to Assist the Court in Implementing Its Decisions -- Censure and Compliments -- Dialogue with the Prosecution and Overseeing Shin Bet Investigations -- 11.Dialogue with Petitioners and Human Rights Organizations -- Invitations to Override -- 12.Dialogue with Victims of Terrorism, Families of Soldiers, and Bereaved Families -- 13.Judicial Review through Dialogue in Israel -- Features of Inter-Branch Dialogue in National Security Cases in Israel -- Messages Conveyed by the Supreme Court Are Not Limited to Legal Norms -- Messages Are Conveyed by a Variety of Means and Formats -- Use of a Variety of Means for Transmitting Messages -- Conclusion -- 14.Judicial Review "under fire" -- The Influence of Real Time Dialogue on the Timing of Landmark Decisions -- The Impact of Advisory Dialogue -- 15.Benefits of the Use of Advisory Dialogue -- Advisory Dialogue as a Means to Prevent Conflicts among Branches -- Advisory Dialogue Contributes to the Advancement of Appropriate Legislation -- Advisory Dialogue Strengthens Democracy, Encourages the Perception of Equal Powers among Branches, and Promotes Public Discourse on Fundamental Questions -- Advisory Dialogue Enables Change without Revolutions -- Advisory Dialogue Allows Judges to Cope Better with Moral Dilemmas -- Advisory Dialogue Allows the Court to Transmit Messages of Varying Intensity -- Advisory Dialogue Enables the Court to Overcome Disparities in Application of Its Decisions -- Advisory Dialogue Enables the Supreme Court to Overcome the Inherent Difficulties of Adjudicating National Security -- 16.The Use of Advisory Dialogue---Disadvantages and Risks -- Promoting Policy by Means of Advisory Dialogue could harm the Separation of Powers -- Advisory Dialogue Could Harm Judicial Procedure -- The Disputed Quality of Advisory Messages -- Advisory Dialogue May Lead to Ambiguity of Norms -- Advisory Dialogue Could Harm the Position and Credibility of the Supreme Court -- Advisory Dialogue and Exclusion -- The Use of Advisory Dialogue Does Not Necessarily Advance Human Rights -- 17.Conclusion---Judicial Review and National Security -- Rules for Proper Use of Advisory Dialogue -- Preferring a Binding Decision -- Prudent Use of Standing, Ripeness, and Political Questions Doctrines before Action -- Transparency -- Message Contents -- Advisory Messages on Questions of Constitutionality and Legality -- Advisory Messages on Questions of Policy -- Advisory Messages with Contents That Rely on Non-Legal Norms -- The Potential Impact of Advisory Messages -- Caution against Overreliance on Government Authorities -- Conclusion.
- Here, David Scharia explains how the Supreme Court of Israel developed unconventional judicial review tools and practices that allowed it to provide judicial guidance to the Executive in real-time. In this book, he argues that courts could play a much more dominant role in reviewing national security, and demonstrates the importance of intensive real-time inter-branch dialogue with the Executive, as a tool used by the Israeli Court to provide such review.
- 9780199393398 (ebook)
- Bibliography Note:
- Includes bibliographical references and index.
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