Deference or Abdication: A Comparison of the Supreme Courts of Israel and the United States in Cases Involving Real or Perceived Threats to National Security

The Supreme Courts of Israel and the United States treat cases involving national security radically differently, or so it appears on the surface. The fact that the two courts make very different use of justiciability doctrines dramatically affects their willingness to decide “war on terrorism” cases that challenge aspects of national security programs as violative of individual rights. On the surface, the approaches of the two courts thus appear to be radically different, and indeed they are, at least with respect to their willingness to hear and decide cases in “real time” and in terms of their willingness to embrace and apply justiciability doctrines to cases involving national security. However, a more probing analysis of actual decisions and their impact on coordinate branches of government reveals surprising similarities. This Article compares the United States and Israeli Supreme Courts\u27 very different use of justiciability doctrines and then moves beyond those doctrines to explore the impact of actual decisions on policies undertaken in the name of national security. Part II describes the articulated philosophies of the two courts regarding the role of judicial review in cases involving national security. This part explores three justiciability doctrines--the political question doctrine, standing requirements, and the state secrets privilege--and compares the two courts\u27 declared positions with respect to those doctrines in cases dealing with foreign affairs. It also analyzes the two courts\u27 articulated philosophies regarding the scope of judicial review in cases implicating military decisions. Part III of the article moves away from the courts\u27 rhetorical stances on questions of justiciability and judicial review and examines and compares decisions of the two courts in cases that pit national security against individual liberties. This part looks at cases challenging practices including targeted killings, torture, administrative detention, and other actions undertaken in the name of national security. Part IV concludes that (a) the two courts have the institutional capability to resolve challenges to national security policies; (b) adherence to non-justiciability doctrines like the political question doctrine amounts to an abdication of the judicial role; and (c) the availability of judicial review has an actual effect on governmental policy and military practice