Secrecy, National Security and the Vindication of Constitutional Law
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Secrecy, National Security and the Vindication of Constitutional Law

Edited by David Cole, Federico Fabbrini and Arianna Vedaschi

Virtually every nation has had to confront tensions between the rule-of-law demands for transparency and accountability and the need for confidentiality with respect to terrorism and national security. This book provides a global and comparative overview of the implications of governmental secrecy in a variety of contexts. Expert contributors from around the world discuss the dilemmas posed by the necessity for – and evils of – secrecy, and assess constitutional mechanisms for checking the abuse of secrecy by national and international institutions in the field of counter-terrorism.
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Chapter 9: National security, secret evidence and preventive detentions: the Israeli Supreme Court as a case study

Shiri Krebs


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 The analysis encompasses all of the relevant judgments, including hundreds of short, laconic and unpublished decisions.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,

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