The Secret Keepers: Judges, Security Detentions, and Secret Evidence

English Abstract: Starvation is a terrible way to die. Yet for more than six months now, dozens of the 166 Guantanamo Bay detainees have been refusing food. At its peak, 106 detainees have participated in the hunger strike. By the time of writing these lines, 45 of the strikers are still being forced-fed through gastric tubes inserted into their noses while they are strapped into restraint chairs. All of these strikers have been detained, indefinitely (at least potentially), for security reasons, based on secret intelligence information that was never fully revealed to them. The hunger strike (as well as practices such as force-feeding), raise many moral and legal issues concerning security detentions. A New York Times editorial described the strike as a ‘collective act of despair’, and reported that prisoners on the hunger strike say that they would rather die than remain in the purgatory of indefinite detention. Clearly, the hunger strike is being used by the detainees to contest their indefinite detention, and to bring attention and some sort of oversight to their cases. This paper focuses on the alternative: an effective and independent judicial review process, which might provide oversight, rule of law limitations, and protections to security detainees. Indeed, the US Supreme Court emphasized in the Boumediene case that ‘few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person’. Yet not all security detention regimes are subject to independent judicial review; and among those which are subject to judicial review, different judicial review models have emerged. In a previous study, I demonstrated some of the inherent deficiencies of the Israeli ‘judicial management model,’ including a considerable gap between the rhetoric of a few renowned cases and the actual practice of the Supreme Court in hundreds of under-analyzed decisions. On the one hand – and contrary to the common view of an interventionist court – the study revealed that the Court systematically refrains from issuing release orders, even when clear procedural flaws were documented. On the other hand, the study identified the formation of alternative dispute resolution methods, such as mediation and negotiation, as well as ‘bargaining in the shadow of Court’ dynamics. This chapter presents some of the most important and interesting findings of this study, and analyzes their broader implications concerning judicial review of security detentions in Israel and elsewhere. Some of the findings are compared and contrasted with decisions from other jurisdictions, including the Supreme Court of Canada, and the UK House of Lords, which adopted a different model of judicial review – that of the ‘special advocate’ model. This comparison helps to better understand some of the weaknesses of the judicial management model, in particular the way it undermines participation and the possible implications of this weakness. By combining the reasoning, actual outcomes and ‘behind the scenes’ dynamics, as well as introducing approaches adopted by other courts, this chapter participates in the continuing international debate concerning the impact of schemes of secrecy and confidentiality on the effectiveness of the judicial review process.

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