In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.

The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.

In a short book and in his contribution to this volume, Richard Posner articulates his vision concerning the most talked about subject in today's legal world: the legal treatment of terrorism. I deliberately say the most talked about subject in today's legal world, rather than the most urgent or important subject because I do not share the conviction that terrorism is a major threat to the U.S. or to the West. I believe that in fifty years historians will look at our era in a way similar to the way we look at the destructive global hysteria which led to the First World War. Of course I immediately concede that neither my view nor, if I may add, Posner's view on the matter, is particularly indicative of the future. People, including geniuses, seem to be notoriously bad at distinguishing between real and unreal risks, and the worst is that even time will never tell us whether the risks we face now are real or imaginary but only whether they materialized or not. So if we meet in fifty years to discuss the issue, we could continue the debate whether the risks posed by terrorism were indeed real, irrespective of what happened in the world.

The general assumption that underlines Richard Posner's argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the Constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner's conclusions based on these assumptions. Posner's main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures.

In his recent book, Not a Suicide Pact: The Constitution in a Time of National Emergency, Richard Posner discusses one of the most urgent and difficult questions of current public law: How should the acute threats posed by terrorism be dealt with? This question touches various issues in constitutional law, administrative law as well as criminal law, and Posner impressively addresses many of them. Most of his account is well-balanced and highly convincing. Guided by liberal ideas and a commitment to human rights, Posner urges necessary and unexaggerated flexibility in light of a major threat. Yet regarding some issues, most notably the issue of torture in interrogation, we find it hard to agree with his analysis and conclusions. This Article focuses on those issues.

My reply is brief; I do not try to recapitulate the arguments in my book, and the précis that accompanies the comments. There are many good points made in the comments, which I do not repeat either; my focus is on the areas of disagreement emphasized in the comments.

Segev. I am puzzled by the reference on the first page of his comment to distributive justice. I understand the term to refer to the principles for allocating wealth or other goods across persons, and I do not think those principles are engaged by efforts to balance concerns of security against concerns of civil liberties.

When I said that “what counts as justification is no part of habeas corpus,” I did not mean that the detention of a person cannot be challenged by asking for habeas corpus, or that the detention need not be justified. I meant merely that the creation of a right of habeas corpus does not indicate how great a showing of necessity to detain a person the government must demonstrate. Justification is a separate issue from the existence of a right of habeas corpus. Obviously if little or no justification is required, the right becomes nugatory.

After years of political stalemate on the issue of end-of life medical care in Israel, the Knesset enacted the Dying Patient Law in 2005. This Article argues that the new law manifests a paradigm shift in the normative framework regulating end-of-life treatment in Israel, from a patient right approach based on the principle of autonomy, to a physician duty approach based on the principle of the sanctity of life. In so doing the law created a complex web of formal procedural rules and culturally unique legal artifices, which amount to a maze of medicolegal technocracy. The technocratic maze conceals substantive restrictions on rights to patient autonomy which had been recognized in the former case law in relation to the withholding and withdrawal of medical treatment. In particular, under the new law, the request of a competent patient to withdraw artificial respiration may not be respected, and the advance directives of an incompetent patient to withhold artificial nutrition are of no effect. Beyond a question of constitutionality, the Article suggests that the underlying approach of the law to death and dying is an unskillful response to the challenges that have arisen from life extending technology.

During the 1980s the Israeli Supreme Court went through revolutionary changes, becoming more active in public life and in the political arena. Scholars predicted that the institutional legitimacy of the Court, based on its image as an objective, neutral, and apolitical institution, would decline following these changes. However, public polls showed that the Court's institutional legitimacy remained very high long after the 1980s. This Article aims to explain the lack of a decline in the institutional legitimacy of the Court during those years by presenting an empirical study of the Court's news television coverage beginning with the inception of Channel One (1968) until just before the entrance of the commercially financed Channel Two (1993). The Article shows that the increase in the visibility of the Court was not substantial enough to diminish the Court's image. Moreover, television continued to present the Court, by and large, through a mythical perspective as an objective, neutral, and apolitical body. The Article concludes that the Israeli public, unaware of the changes in the Court's adjudication, continued to award the Court support based on the Court's unchanged fabled image presented by the news media. Hence, a politically active court may continue to receive high public support based on in its mythical image if the changes in its adjudication are not visible to the public. Research of the portrayal of courts in the media is thus of utmost importance in understanding changes in the institutional legitimacy of courts.

The Article examines the “transnational” use of torture evidence, i.e., the use of evidence obtained by torture by third states or parties in national criminal trials. The analysis of the law of the international criminal tribunals shows that supranational torture evidence must be excluded since such evidence is unreliable and damages the integrity of the proceedings. The same applies to the admission of transnational torture evidence before national tribunals. The strict exclusionary rule of Article 15 Convention Against Torture (CAT) confirms this view. The rationale for this rule is found in the general unreliability of torture evidence, its offensiveness to civilized values and its degrading effect on the administration of justice. The burden of proof must, as a rule, rest with the state as the party that presents the controversial evidence. For practical and fundamental considerations of fairness, such evidence should not be admitted if there is a real, serious risk that it was obtained by torture.

The legal framework in effect in Germany since 1991, bars all research on human embryos and permits, since 2002, the import of embryonic stem cells only under the fulfillment of relatively demanding conditions. Legislation linked this position to the goal of ensuring freedom of biomedical research (only) to the extent that it could be justified in view of the state's obligation to protect human dignity and the right to life. Underlying this was the assumption, understood by the draft of the law that embryonic stem cells, given the destruction of embryos, which necessarily precedes their utilization, “cannot be viewed just like any other biological material from an ethical perspective.” In the meantime, however, the legal-political, would-be “enlightened”; Zeitgeist has become oriented toward a hidden or openly displayed “liberalization” of human embryonic stem cell research, which raises the question of what could have fundamentally changed about the previously named “ethical problem.” Great uncertainties obviously exist regarding the central significance of the “human dignity” guaranteed to be “inviolable” as well as about the relevance of this “iron ration” of libertarian-humanist legal thought in the context of destructive embryo research. The present essay gives an overview of the potential interpretive possibilities and subjects them to critical examination against the background of current legal-political developments, which are perceived in Germany not only as a “revolution” not only in the sphere of biological policy, but also ultimately in that of the central determining factors in general in the relationship between state and individual. In this light, how can the kernel of the ideal of human dignity be preserved even against the demands of the (post-) modern (age)?

The Parliamentary Council, the constitutional assembly for the German Basic Law, split over the question whether the guarantee of human dignity should be understood as the result of a democratic decision or as the incorporation of a pre-existing universal principle of Christian origin. The subsequent constitutional practice was dominated by a moral understanding of the norm that stressed the contradiction between democracy and human dignity. This Article rejects this interpretation and attempts to show, using the exemplary German case, that a democracy-oriented interpretation of human dignity is not necessarily less effective than a moralized understanding.