Legal Juggling Act


Justice Aharon Barak says his toughest case in his 24 years on the Israeli Supreme Court involved a police request about a year ago to use force to extract information from “a ticking bomb,” a suspect believed to have knowledge of an imminent terrorist attack.

Speaking to an overflow audience of several hundred people Monday night at the Center for Jewish History, Barak — no relation to former Israeli Prime Minister Ehud Barak — said he wrote the majority opinion in the coercion case, concluding that a democracy can never use torture.

“Sometimes a democracy fights with one hand tied behind its back,” he said, reading from his decision. “But in the end it will prevail.”

The lecture was part of the “Jews and Justice” series cosponsored by Fordham University’s Louis Stein Center for Law and Ethics and The David Berg Foundation.

In his talk, at times personal and at times scholarly, the justice, who has held the post of president of the Supreme Court for the past seven years, emphasized the unique pillar of Israel’s legal system, introduced in the country’s Basic Laws in 1992: to establish the values of both a Jewish and a democratic state.

There are “tensions and contradictions,” he acknowledged, but it is the judge who must find unity between Jewish and democratic values.
“It is possible in most cases,” he said, through “mutual concessions to find a proper balance.”

Many Orthodox Jews in Israel are less sanguine about the court’s efforts in this regard, believing Barak has sought to impose his ideology on Israeli society.

An Orthodox protest against the Barak court three years ago drew some 250,000 people.

Nevertheless, Barak said in his talk that Israeli law relies on the values of Zionism and heritage, including halacha, or religious law, always seeking synthesis.

Sometimes there are conflicts, he said, citing women’s rights and the status of the ger, or foreigner, as examples, “but we look for compromises.”

Similarly, he emphasized that while Israel is a Zionist state and a home for all Jews, that does not mean it can discriminate against those of other religions or nationalities. In his analogy, Jews were given a special key to the house (Israel), but once inside the house, everyone is equal.

Asked during the question-and-answer session why it is not preferable to violate one man’s civil rights in coercing information from him if the lives of, say, 5,000 innocent civilians were at stake, Barak noted that there are good arguments on both sides and, he told the man who posed the question, “your moral argument may be better than mine.

“But I want to insist that a democracy should not use force,” he said evenly, adding that if society is not satisfied with such a policy, the Knesset should pass legislation permitting coercion — as long as it is constitutional.

Barak said he had given much thought to such cases, noting “I always think in the long term, not the short term, and if we allow the police in one case [to use force], they’ll do it often.”

Coercion may be effective in one extreme case, he reasoned, but in the long run it will have a negative effect on society.

He also explained that while his ruling made it illegal to use various forms of torture — which he described as the likes of sleep deprivation or using loud noises — there are times when such coercion is justified under a “defense of necessity.”

Barak noted with pride that the result of his ruling against coercion “made our security forces think better, be more clever and develop new techniques” that don’t include force. “The police did not complain to me and the Knesset did not seek legislation” to overturn the ruling. “They realized,” he said, “that in most cases we can protect society” without using force.

Noting that his talk was taking place on the eve of Sept. 11, Barak said Israelis empathized with Americans, “but we have many Sept. 11s,” he said, referring to the ongoing terror inflicted by Palestinians on Israelis. He said he hoped the U.S. would look to Israel’s legal system as it grapples with fighting terror effectively while maintaining democratic values. “For us,” he said, “to continue our life at home while fighting against terror puts our whole society into tension and our courts into tremendous tension. It is so complicated to reach the proper balance.”

Born in 1936 in Kovno, Lithuania, Barak said he was one of only a handful of children to survive the Kovno ghetto during World War II, “where life had no value.” He immigrated to Israel in 1947.

The two lessons he learned were simple, he said — “not hatred, but the centrality of the State of Israel to the Jewish people and the central value of every human life.

“Only a state built on human dignity will endure,” he asserted, “one based on the needs of society as well as the individual.