Tuesday, July 27, 2004

Column: Fenced in

A separation fence will never solve Israel’s security issues because any Israeli withdrawal, from any area, will result in the creation of a new launching pad from which to fire missiles into all of Israel. What we have been seeing in Sderot is a confirmation of this assertion. Upgraded rockets are now a threat not just to the Jewish communities of Gaza but to adjacent communities inside the green line. A fence is not a solution but a ruse. Its purpose is to make a withdrawal from "occupied territories" look like a well-reasoned security maneuver. Nothing could be further from the truth.

The withdrawal from Lebanon has brought an influx of missiles into the one-time security zone that can blanket all of northern Israel. There are even Iranian missiles there -- armed by Iranian soldiers -- that can reach Tel Aviv. The short term benefits of keeping suicide bombers at a distance are just that, short term. Rocket factories have already been discovered in Samaria. Why should what happened in Lebanon not happen there? Why should it not happen in Gaza? It has already started. It is out there in the open for all to see.

Keeping this in mind, let’s look at the recent decision of Israel’s Supreme Court to force the Defense Ministry to reroute 30 kilometers of the fence. In a statement following the decision, the Defense Ministry said, "The replanning of these sections will be based on the principles set by the High Court, namely the proper balance between security and humanitarian considerations."

What has happened is that the Supreme Court has ruled that "humanitarian considerations" regarding the sworn enemies of Israel supersede maximum security for the protection of Jewish lives.

What could make the Israeli Supreme Court reach such a perverse decision? Is there nothing that limits their power? Can they simply override the Defense Ministry decisions concerning security matters to meet their latest whim of morality and "humanitarianism?" The amazing answer is that the Supreme Court under Aharon Barak can do just that. It makes law -- law that even the legislative body, the Knesset, is bound to follow.

Nevertheless, one would assume there must be some logic behind the fence decision. Perhaps that logic can be found in the recent, and in some ways, similar decision of the United States Supreme Court in Rasul v. Bush. That decision prompted the following relevant comments by Andrew C. McCarthy in an article that appeared in National Review Online:

" ... as manifested in Rasul, yesterday's case involving claims of foreign enemy combatants captured on faraway battlefields and held by the military in Guantanamo Bay, Cuba — an installation outside the jurisdiction of any US court — the judiciary is no longer a neutral arbiter there to ensure that Americans get a fair shake from their government and its laws. Instead, it is evolving, or morphing, into a sort of United Nations with teeth. It has seized the mantle of international arbiter, ensuring that the world — including that part of it energetically trying to kill Americans — has a forum in which to press its case against the United States."
In the winter 2004 edition of "The Public Interest" there was a very interesting piece that perhaps explains what we are now witness to in both these cases. It is titled "Multilateralism Comes to the Courts." Written by Ken I. Kersch, it shows a trend in the United States Supreme Court that has been identified by Andrew McCarthy in his observation that the Court is "evolving, or morphing, into a sort of United Nations with teeth."

Kersch wrote:

" ... passing references to international agreements and foreign law (in recent decisions) are easily overlooked, and the Court’s appeal to international standards received scant critical attention. The Court’s multilateral turn, however, is no accident. Behind these seemingly benign references to international agreements and foreign practice stands a vast and ongoing intellectual project, one which the justices themselves occasionally acknowledge. Justice Breyer, the Court’s most intellectually au courant justice, boldly declared last spring on ABC’s "This Week" that "whether [and how] our Constitution ... fits into the governing documents of other nations" is a "challenge for the next generations."

Perhaps, keeping in step with the international spirit of this "intellectual project" is what motivated the Israeli Supreme Court to reach it's oh so politically correct decision on the fence -- just as it appears that the "project" has influenced the Rasul decision.

There is however at least one profound difference between the ultimate consequences of these two decisions. Congress makes law. When and if Congress deems it necessary to pass a new law to protect American lives from terrorists and toss Rasul into the trash heap, it can do so -- assuming the law in constitutional. In Israel, the High Court, under Barak’s influence, has become so powerful that it does just as it sees fit -- and whatever it sees fit is the final word.


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