Prisoner Rights vs. National Security

"A democracy must often fight with one hand tied behind its back."

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… Deciding these applications weighed heavy on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. Our apprehension is that this decision will hamper the ability to properly deal with terrorists and terrorism, disturbs us.

We are, however, judges. Our brethren require us to act according to the law. This is equally the standard that we set for ourselves. When we sit to judge, we are being judged. Therefore, we must act according to our purest conscience when we decide the law. The words of the Deputy President of the Supreme Court, Justice Landau, speak well to our purposes:

"We possess proper sources upon which to construct our judgments and have no need, and while judging, are forbidden from, involving our personal views as citizens of this country in our decisions. Still, great is the fear that the Court shall be perceived as though it had abandoned its proper place and descended to the midst of public debate, and that its decision making will be obstructed by one side of the population's uproar and by the other side's absolute and emotional rejection.

"In that sense, I see myself here as someone whose duty is to decide according to the law in all cases legally brought before the Court. I am strictly bound by this duty. As I am well aware in advance that the public at large will not pay attention to the legal reasoning, but to the end result alone. And that the Court's proper status, as an institution above partisan debates, risks being harmed. What can we do, as this is our function and role as judges" (H.C. 390/79 Dawikat v. The State of Israel, 34(1) P.D. 1 at 4)….

Consequently… we declare that the GSS does not have the authority to "shake" a man, hold him in the "Shabach" position [hands tied behind the back of a chair in a painful position with a dark hood thrown over the head], force him into a "frog crouch" position and deprive him of sleep in a manner other than that which is inherently required by the interrogation.

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