Is Israel a good counter-terrorism role model for the US? This question has been on my mind ever since the morning of September 12, 2001, when professors in two consecutive lecture classes told us first-year law students that we needn’t worry, that they had been talking to friends in Israel, friends who knew just what we were going through because they deal with terrorism all the time, and that we’d get through it just like they did, whether with tighter airport security or with other measures. We’d get through this just like the Israelis do every day. This was intended as a soothing reassurance, and taken as such by many students.
I found it disturbing. Do we really need to start living like Israelis? In constant tension with neighboring countries, in a state of permanent national emergency, under constant threat of terrorist attack? Do we really want to be the defiant practitioner of many policies—assassination and preventive detention for instance—that most of our peer nations profess to abhor? (We americanos used to officially abhor them too in that sepia-toned decade before 9-11.) Beefed-up airport security has indeed come to pass, a farce and a headache. Overall, not my idea of the good life.
Last week I went back to NYU for a short conference, “Democracies and National Security: The American and Israeli Experiences,” sponsored by NYU’s Taub Center for Israel Studies and an Israeli outfit called the Israel Democracy Institute.
The panel led off promisingly with Gabriella Blum, a former IDF lawyer now at Harvard Law, who told us that the similarity between the US and Israel is in fact a little too intuitive, and laid out the many differences. Brava.
Have we then turned to Israel for guidance a little too reflexively, a little thoughtlessly? If the similarity of our circumstances really is overdrawn, is Israel then the best source of counter-terrorist guidance for the US? I asked the panelists if we necessarily had more to learn from the Israeli experience than from the United Kingdom, Colombia or Italy, all liberal democracies which have also dealt with sustained threats from terrorists and/or armed militants over the past decades. None of these other countries is an exact parallel to our own situation, and none has met total success in balancing national security with civil liberties and other concerns. And the same, of course, could be said of Israel.
The response to my question was pretty much what I expected. Gabby Blum herself quickly answered that no, the European examples are not applicable to the US because their terrorism is “home-grown.” (Really, the IRA, home-grown? More than Hamas, which Israel used to bankroll? Not a very satisfying answer.) Yuval Shany, Hersh Lauterpacht Professor of International Law at the Hebrew University, assured me that Israel and the US were, alas, locked into their own little support group of two. This he said sighingly, as if the US and Israel were two star-crossed lovers in a cold and misunderstanding world.
The outlook of so many American national security intellectuals was typified by panelist Rick Pildes, a justly-esteemed professor at NYU Law. Pildes is a real asset to NYU Law: a frequently brilliant scholar on election law and constitutional law, always a cogent talking head, a popular lecturer and a co-director of the school’s Center for Law and Security.
Pildes seemed almost to salivate at the prospect of adopting a counter-terror legal system like Israel’s, “more sophisticated, less binary,” than the American approach. He spoke enviously of Israel’s “third way” that is neither a war paradigm, nor a criminal justice paradigm, and wondered aloud if the US might adopt judicially-ordered preventive detention, just like Israel has. No doubt about it, Israel does have a more complex, developed set of laws in its counter-terrorism toolkit—but is this really a virtue? Shany said that the Israeli legal system had “benefited” from a gradual and constant deterioration of the nation’s security, and so has developed more nuanced legal tools to prevent terror attacks. Ah wonderful, a silver lining for lawyers.
Of course we lawyers do have a built-in bias in favor of law itself: a solution to any problem that involves more law we tend to like, and the more complex and nuanced the law--the more we like it! (This goes triple for law professors.) Solutions that are non-legal—for instance political, diplomatic, social, military-- tend not to cross our minds. Not our brief, can’t help you. So the counter-terrorist solutions boosted by Pildes and speaker Amos Guiora (another former IDF lawyer now teaching law at University of Utah) have all revolved around fancy new legal structures, like hybrid special courts and subtle continuums from criminal to terrorist, all giving more power to the judges and courts. Yes, more law!
Not surprisingly, the simple option of withdrawing our military from Afghanistan, Pakistan, and Iraq or cutting off our lavish military and diplomatic support to Israel was not even mentioned as a way to undercut anti-American terrorists, despite this course of action’s essential morality, prudence and Gordian efficiency. Equally unsurprising, neither was the possibility of Israel withdrawing behind its ‘67 borders, uprooting its illegal colonies in the West Bank and East Jerusalem and/or giving full citizenship rights to all Palestinians. Too crude, too unsubtle? Too “unrealistic”?
George Fletcher of Colombia Law, to his credit, did at least bring a glimmer of peripheral vision as he pondered the immense costs of Bagram and Guantánamo, both in treasure and soft power. But his contention that the boring old US Constitution is perfectly up to the task of regulating our many counter-terrorist policies was speedily pooh-poohed by Pildes. “To say that the Constitution is enough for this situation is to blank out reality!”
I’m not so sure. Since 9-11, of course, the US has performed many extra-Constitutional and extra-legal maneuvers in the name of emergency, from torture to indefinite detention at Gitmo and Bagram to the conquest of Iraq itself. To claim that any of these measures has contributed one iota to national security rather than undermined it is, it seems to me, to blank out reality. It is 2010, not 2003; this is no longer a minority opinion.
Throughout the conference, the overall strategic failure of Israel’s quest for national security went all but unmentioned, as did the overall failure of America’s spastic and self-defeating responses to 9-11. (Perhaps a support group is not the place to probe such wounds.) Shany did alight on the disturbing “spillover” of counter-terrorist practices into the policing of ordinary Israelis, where gag orders and incommunicado detention are mushrooming. Is this something we want to emulate in the United States? Have we already taken this path?
Nine years and one conference later, I remain unconvinced that Israel is a good counter-terrorist role model for the United States. What Israel does offer us seems to lie much more in the way of object lessons than sane, effective security policies. No matter. Since 9-11, our own permanent emergency has corroded civil liberties, spawned pullulating Islamophobia and produced illiberal detention policies and Presidentially ordered assassinations, of US citizens even. This is not unlike the Israeli way—and is it really working out for them? By now our heads should have cooled off enough to allow us to look around the world and see what works and what doesn’t in counter-terrorism, never ignoring the big strategic picture as this conference resolutely did. Then again I’m not sure whether the function of the conference was to stimulate real thinking about counter-terrorism or to cement even closer ties between the US and Israel. The two may well be mutually exclusive.
Madar is a lawyer in NY who writes for Le Monde diplo, the London Review of Books, and The American Conservative. Six months back we posted Madar's report on the American Society for International Law's annual conference and their panel on the Goldstone Report, here.