The consideration of rights in the Israeli Counter-Terrorism Law

Abstract

Abstract What can we realistically expect from pre-enactment rights engagement, particularly in sensitive areas like counterterrorism, which pit “our” security against “their” rights? This article seeks to contribute to the ongoing scholarly effort to explore this question, through an in-depth case study of the Israeli Counter-Terrorism Law, adopted by the Knesset in 2016. The case study reveals a complex picture. On the one hand, the unrushed and depoliticized nature of deliberations on the Counter-Terrorism Law contributed to a parliamentary process that, while not challenging the government’s core policy agenda, did force it to justify and refine the specific, worthy purposes of particular provisions, to agree to some narrow-tailoring, and to improve certain procedural safeguards. These parliamentary processes were facilitated primarily by the institution of the Knesset committee legal advisor, whose non-partisan, independent status and wide-ranging advisory functions position them to facilitate informed rights-based deliberations in the absence of a formalized vetting process. At the same time, the case study reveals significant constraints on the potential for deliberative rights engagement, which are particularly salient in the field of counterterrorism, including the information gap—the fact that the government possesses a near monopoly on the factual expertise and information necessary to effectively evaluate counterterrorism policy, and the problem of voice—the fact that those whose rights are most likely to be curtailed by counterterrorism measures are underrepresented in the process. Relatedly, it demonstrates the importance of including in the process actors who are institutionally motivated to be skeptical of government discretion and who take seriously the risk of erroneous or abusive use of power.