Judicial Review of National Security

Judicial Review of National Security

by David Scharia


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In recent years, countries around the world introduced numerous national security programs and military campaigns. Despite the complex legal questions they raise, very few of these measures have been the subject of rigorous judicial review. Nevertheless, the absence of real-time review has had an enormous effect on human rights, rule of law, and on national security. The Supreme Court of Israel provides an excellent case study of a different approach, which allows judges to assess military action in real-time and to issue non-binding results of their evaluation. This raises the question: How was the Court actually able to uphold this challenge?

In Judicial Review of National Security, 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. This book aims to show that if one Supreme Court was able to provide rigorous judicial review of national security in real-time, then we should reconsider the conventional wisdom regarding the limits of judicial review of national security.

Product Details

ISBN-13: 9780199393367
Publisher: Oxford University Press
Publication date: 11/27/2014
Series: Terrorism and Global Justice Series
Pages: 278
Product dimensions: 6.10(w) x 9.30(h) x 1.10(d)

About the Author

Dr. David Scharia (PhD, LLM) is the Coordinator of the Legal and Criminal Justice Group at the United Nations Security Council Counter Terrorism Committee Executive Directorate (CTED). Before joining the United Nations, Dr. Scharia worked at the Supreme Court division in the Attorney General office in Israel where he was lead attorney in major counter-terrorism cases. Dr. Scharia served as a Member of the experts' forum on "Democracy and Terrorism" established by Israel leading think-tank the Israel Democratic Institute. He was National Security Scholar-in-Residence at Columbia Law School and is a member of the professional advisory board of the International Institute for Counter Terrorism (ICT). Dr. Scharia is a frequent writer and lecturer on national security law issues. His articles have been published in the most prestigious forums including the Harvard National Security Journal. This is his second book.

Table of Contents

Chapter One: Decisions Made in Real Time
Chapter Two: What we know about advisory dialogue and courts
Chapter Three: Judicial Review in Real Time - Use of Interim Decisions
Chapter Four: Supreme Court Practice and Dialogue
Chapter Five: Deviating from the Rules of the Game
Chapter Six: Recommendations
Chapter Seven: Signaling in judgments
Chapter Eight: Dialogue on Policy Application - I
Chapter Nine: Dialogue on Policy Application - II
Chapter Ten: Dialogue With Military Authorities
Chapter Eleven: Dialogue With the Attorney General office
Chapter Twelve: Dialogue With Petitioners And Human Rights Organizations
Invitations to override
Chapter Thirteen: Dialogue with Victims of Terrorism, Families of Soldieries and Bereaved Families
Chapter Fourteen: Features of Inter-Branch Dialogue in National Security Cases in Israel
Chapter Fifteen: Judicial Review in Real Time
Chapter Sixteen: Benefits of the Use of Advisory Dialogue
Chapter Seventeen: The Use of Advisory Dialogue - Disadvantages and Risks
Chapter Eighteen: Conclusion - Judicial Review and national security

Appendix A
Judicial panels in judgments where fundamental decisions constituting precedents against the state were given

Appendix B
Dates of Principal Rulings Comprising Precedents Against the State, in View of the Number of Israelis Injured in Terrorist Attacks 1996-2005



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