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Jewish World Review Dec. 3, 2001 / 18 Kislev, 5762

Jonathan Tobin

Jonathan Tobin
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Reconciling Justice and Security

An America at war experiences Israel's legal dilemmas -- At its artistic peak, the long-running television series "Law and Order" offered viewers a different view of the American legal system than most detective, cop or legal shows.

In the past, detectives like Lt. Columbo only had to figure out, by hook or by crook, which suspect was responsible for the murder. In the last act, the bad guy would either give himself away or the clever hero cop/D.A./amateur sleuth would reveal the culprit himself.

But in "Law and Order," it was never that simple. Confronted with confusing evidence, the police would often suspect the wrong person until further twists and turns led them to the likely suspect. Then, the district attorneys would step in and often find that the damning evidence turned up by the police would be ruled inadmissable by some judge, so they'd have to start the investigation all over again.

I can't say that I'm looking forward to that show tackling the aftermath of the Sept. 11 terror attacks or other recent atrocities "ripped from the headlines," as their ad material says. But even if they do, there is a real question as to whether the basic premise of "Law and Order" can apply to the worst crime ever committed in the jurisdiction that it dramatizes.

And on that query hangs the debate that is raging throughout the country.

In the past month, the opinion pages of American newspapers have been filled with debate about how to reconcile our war against terrorism with the stringent requirements of our legal system.


Columnists and pundits of all stripes are deeply divided over President Bush's announcement that special military tribunals will be convened for the trial of captured terrorists. Others have even debated whether torture of terrorist suspects was defensible.

Suddenly, politicians and legal minds that were loath to consider any infringement of a defendant's rights are now perfectly content to approve measures that might apprehend, try and convict suspects without benefit of any of the legal technicalities that most of us know so well from police shows on television. Rules of evidence and public scrutiny may be out the window as Bush's tribunals execute swift justice on any Al Qaeda member it can lay its hands on.

In the space of a few weeks, as a nation we seem to have traveled from the legal minefield navigated by the harried cops of "Law and Order" to a situation more akin to the old cowboy shows that filled TV screens when I was a boy.

Instead of reading the culprits their rights and worrying about whether the search was legal, we are now back to pledging that we will give the bad guys a fair trial first, then we'll hang them!

Many of us, both liberals and conservatives alike, are unhappy about this potential turnabout in our legal culture. Some, like New York Times columnist William Safire, worry about a power grab by a new imperial presidency that will trash our rights. Others believe this is a frontal assault on the Consti tution.

But despite the worries of the civil libertarians, there is every likelihood that Bush's tribunals will proceed and be processing evil-doers long before we even hear about it. And it is unlikely the courts or Congress will stop this process so long as we are under a threat of terror.

That's what happens in a nation at war. Thousands of Americans have been cruelly murdered by a vicious foe in an act of war - not a "hate crime" as one academic wrote recently in The Philadelphia Inquirer. More than two months later, no one knows when or if we will be hit again.

Complacency about Islamic terrorism and the movement that supports it has gone on long enough. Indeed, who can imagine the U.S. Marines being required to read Osama bin Laden's crew their rights when they are apprehended in Afghanistan, or having to worry about whether evidence found there is admissible in American courts. Our enemies must be stopped and punished without hope of a judicial savior.

In what Bush has rightly termed "an extraordinary emergency," the old rules do not apply.

Or do they?

If some elements of these debates seem familiar to some readers, they should. Israel, a country living through its own "extraordinary emergency" throughout its 53 years of life, has been struggling with many of these same dilemmas.


Few democracies have had to live in a state of war for extended periods, and when they have, the results have not been pretty.

Unlike Britain or France and other countries that managed to carry on their counterterror offensives without too much international condemnation, Israel has been subjected to a chorus of criticism for decades from fellow democracies and from the scores of tyrannical regimes around the world.

The dilemma facing a policeman interrogating a terror suspect while a bomb is ticking may not greatly move worldwide opinion so long as the potential casualties are Israeli Jews. But now that Americans face the same danger, we in this country must cope with the awful questions of just how far we are prepared to go to save lives.

Writing in The New York Times this past Sunday, Israeli revisionist historian Tom Segev cautioned American readers to learn from Israel's mistakes. He worried that we, too, will succumb to our anger at terrorists, and rally round our flag while doing anything and everything to capture and convict our enemies.

The temptation to dismiss Segev's concerns as irrelevant is great. After all, there is nothing wrong with the patriotic fervor sweeping this wounded nation any more than the Zionist principles that Segev would prefer Israel discarded.

Like many critics of Bush's policies, Segev still doesn't get the fact that both countries are in peril and that a government's first duty is to defend the lives of its citizens. Clouded by his own mixed feelings about Israel's existence, he has no qualms about handicapping Israel's measures of self-defense. And he thinks Americans should feel the same way.

But as much as his perspective is appalling, it is a reminder that some of the dangers of creating a security state are not frivolous.

The use of torture to get information out of terrorists is still permitted in Israel for understandable reasons. But one of the consequences of this has been the growth of a culture of violence among law-enforcement officers that has resulted in the routine beatings of innocent Israeli protesters, not just terrorists. Measures enacted only against noncitizens have a way of seeping into the rest of the system.

Fear of the threat of terrorism has also resulted in restriction on the right of free speech. An offensive caricature of the Prophet Mohammad landed a cartoonist in an Israeli jail. Anger over the assassination of Prime Minister Yitzhak Rabin resulted in the imprisonment of a friend of the killer for not turning him in, despite the prosecution's weak evidence and a shaky foundation in law.

While this problem has not destroyed Israeli democracy, it has harmed it in ways that are not easy to repair. Restraining the military, the security services or prosecutors from overstepping their authority is difficult in an atmosphere of fear.

In the end, special military tribunals may be the only way to deal with Al Qaeda and bin Laden. Just as Israel has learned, legal niceties won't work in the heat of battle if you want to survive.

But like Israel, the United States now faces a future in which terror will be a constant companion. Justice and security aren't contradictory goals but they can be if the war becomes an excuse for government to do whatever it likes. Americans must remain vigilant throughout the process by which Al Qaeda criminals are dealt with. Fighting terror effectively need not cost us our liberty. But it could if we let it.

JWR contributor Jonathan S. Tobin is executive editor of the Philadelphia Jewish Exponent. Let him know what you think by clicking here.

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