Judicial Review of National Security

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 allowsjudges 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 atool 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.

Most observers of national security programs and military actions recognize that executive leaders and military commanders at times have taken actions that harm human rights or exceed legal authorities. If courts have a say in such matters at all, judges' opinions often come too late to redress the wrongs that have occurred. In Judicial Review of National Security, David Scharia elegantly presents the experience of judicial review from modern Israel, where in many instances real-time judicial review has managed to temper the government's national security actions, benefiting human rights and the rule of law. The lessons Scharia deftly draws from Israeli history may inspire those hoping to bring judicial review values to other cultures., Judicial Review of National Security challenges the conventional wisdom that courts cannot review national security measures in times of crisis. David Scharia persuasively demonstrates how one court, Israel's Supreme Court, has done just that, David Scharia's book is an important contribution on a difficult subject - judicial review of executive action on the most acute questions of national security and the rule of law. His examination of the practice and jurisprudence of the Israeli Supreme Court shines a light on its activist approach, not free from controversy and debate, but an exemplar of judicial engagement and real-time adjudication on pressing issues that reach to the heart of Israel's democracy and governance. This book makes that practice and jurisprudence more accessible and gives us a lens through which to view and assess it.

David Scharia is a Senior Legal Officer and the Coordinator of the Legal and Criminal Justice Group at the United Nations Security Council's Counter Terrorism Committee Executive Directorate (CTED), where he leads the group, strategizes its activities, and develops counter terrorism legal policy. Before joining the United Nations, Dr. Scharia was a First Senior Deputy at the Supreme Court division in the Attorney General office in Israel, where hewas the lead attorney in major counter-terrorism cases. He also served as the representative of the Attorney General's office to the Law and Constitution Committee of the Israel Knesset in connection with preparation of counterterrorism legislation. Dr. Scharia is also on the international advisory board of severalleading research institutions including the International Institute for Counter-Terrorism, the Research Institute for European and American Studies, and the Global Forum for Counter Radicalization.