Rule of law, love of democracy bind Israel, U.S.

In reflecting on the source of the special relationship between the United States and the state of Israel, I am inevitably drawn back to a Bible class in rabbinical school during which we explicated the meaning of the mandate in Deuteronomy 16:20: "Justice, justice shall you pursue."
Building on the exegetical principle that there exist no superfluous words in the Bible, the Rabbis have interpreted the repetition of the word justice in this verse to convey the powerful teaching that both the ends we pursue and the means by which we pursue them must be just. The cornerstone of a just society is the recognition of this truth, and the willingness to insight on a congruence of means and ends in the resolution of deep-seated societal problems.
Recent Supreme Court decisions in the United States and Israel provide an illustration of how both societies are coming to terms with the struggle of balancing the competing considerations of security and liberty in their insistence on remaining both secure and free. The subtext of these decisions is what occurs when particular means being utilized in the war against terror are challenged as conflicting with the fundamental rights and democratic principles thought to be at the heart of the characteristics that make a society worthy of fighting for.
During these rather dangerous and unsettling times, when even the most progressive and sensitive among us are tempted to sacrifice a small amount of liberty for the sake of purchasing greater safety, these recent decisions call upon us to re-examine our assumptions about what it is that truly makes us strong and immune to the designs of our enemies.
Israeli court decision
In the Israeli Supreme Court decision, Beit Sourik Village Council vs. The Government of Israel, the issue at hand was the legality of the security fence being constructed by Israel as the cornerstone of the effort to protect her citizens from the scourge of terror that has become part of the reality of daily life in this beleaguered country. The challenge to parts of the fence was brought by particular Arab villages who insisted that its construction as planned would cause undue hardship by undermining the economic and other underpinnings of their daily life in ways calculated to deny them fundamental human rights. In assessing the legality of the challenged parts of the security fence, the Israeli Supreme Court concluded that its horrific impact on the daily lives of those affected by its construction outweighed the important security considerations that motivated its being built. In the words of the Court: "The fence ... causes injury to the lives of 35,000 local inhabitants. 4000 dunams of their lands are taken up by the route of the fence itself, and thousands of olive trees growing along the route itself are uprooted. ... The injury caused by the separation fence is far wider in scope. It strikes across the fabric of life of the entire population."
In the Israeli Supreme Court decision, Beit Sourik Village Council vs. The Government of Israel, the issue at hand was the legality of the security fence being constructed by Israel as the cornerstone of the effort to protect her citizens from the scourge of terror that has become part of the reality of daily life in this beleaguered country. The challenge to parts of the fence was brought by particular Arab villages who insisted that its construction as planned would cause undue hardship by undermining the economic and other underpinnings of their daily life in ways calculated to deny them fundamental human rights. In assessing the legality of the challenged parts of the security fence, the Israeli Supreme Court concluded that its horrific impact on the daily lives of those affected by its construction outweighed the important security considerations that motivated its being built. In the words of the Court: "The fence ... causes injury to the lives of 35,000 local inhabitants. 4000 dunams of their lands are taken up by the route of the fence itself, and thousands of olive trees growing along the route itself are uprooted. ... The injury caused by the separation fence is far wider in scope. It strikes across the fabric of life of the entire population."
Reining in power
In the United States, the Supreme Court recently ruled on a variety of issues arising from the Bush administration's response to the terrorist attacks of Sept. 11, 2001. Citing as legal authority congressional resolutions authorizing it to take necessary and appropriate force against nations, organizations, or people that planned, committed or aided in the terrorism of 9/11, the Bush administration has claimed the authority to detain those designated as enemy combatants without proper notification of the charges against them, access to their attorneys, or meaningful opportunity to contest the charges. The length of time during which authority to ignore the fundamental underpinnings of due process of law is claimed is indeterminate and a function of circumstances beyond our ability to predict or control. Speaking for the court in Hamdi vs. Rumsfeld, Justice O'Connor rejected these claims of unchecked power asserted by the administration, and admonished it to remember "that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Preserving principles
The logical underpinning common to the decisions of both courts is the commitment to preserving the characteristics and institutions of a democratic society from the onslaught of those claiming that exigent circumstances have rendered those safeguards luxuries we can no longer afford. The encroachments on our liberties justified by this logic are always cloaked in rhetoric that makes those who resist its allure seem to be out of the mainstream or unburdened by common-sense considerations of safety and security.
How fortunate that in the context of these pressures, courageous jurists in Israel and the United States have reasserted the fundamental role of the judiciary as the last bastion in the protection of fundamental rights and as a check against unfounded assertions of unlimited power on the part of other coequal branches of government.
In the process, they may have made our immediate response to the threat of terror somewhat more complicated. But they have provided a service to all of us by insisting that the essential objectives of the worldwide war against terror be waged through means worthy of our most noble traditions. It is this common commitment that links Israel and the United States together: the sacred cause of democracy and the rule of law.
XRabbi Simeon Kolko is rabbi at Beth Israel Temple Center in Warren.