Krebs, Shiri --- "National security, secret evidence and preventive detentions: the Israeli Supreme Court as a case study" [2013] ELECD 678; in Cole, David; Fabbrini, Federico; Vedaschi, Arianna (eds), "Secrecy, National Security and the Vindication of Constitutional Law" (Edward Elgar Publishing, 2013) 133

Book Title: Secrecy, National Security and the Vindication of Constitutional Law

Editor(s): Cole, David; Fabbrini, Federico; Vedaschi, Arianna

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781953853

Section: Chapter 9

Section Title: National security, secret evidence and preventive detentions: the Israeli Supreme Court as a case study

Author(s): Krebs, Shiri

Number of pages: 21

Abstract/Description:

The ‘war on terror’ gave rise to various harmful state-sponsored means, including preventive detentions, designed to stop suspected terrorists from committing future atrocities. Judicial review provides the main protection against arbitrary and unjustified preventive detention, which is often based on secret evidence. In the first decade of the twenty-first century, the Israeli Supreme Court reviewed hundreds of preventive detention cases. Scholars have argued – based on the Court’s rhetoric in a few renowned cases – that Israel’s judicial review of preventive detentions is robust and effective. However, there has been little scrutiny of the Court’s actual review practice beyond a handful of high-profile, oft-quoted cases. This chapter presents, for the first time, a systematic empirical analysis of the Israeli Supreme Court’s case law regarding preventive detention from 2000 to 2010. The analysis encompasses all of the relevant judgments, including hundreds of short, laconic and unpublished decisions. The findings reveal a meaningful gap between the rhetoric of a few renowned cases and actual practice. On the one hand, this study reveals that out of the 322 cases decided by the Israeli Supreme Court in this period, not a single case resulted in a release order, and in no case did the Court openly reject the secret evidence. On the other hand, more subtle Court dynamics were detected, such as ‘bargaining in the shadow of Court’ and ‘mediation’ efforts on behalf of the Court. In order to lift the veil of secrecy that typically characterizes judicial proceedings regarding preventive detentions, the study involved seventeen in-depth interviews,