The Dynamics of Israel's National Security Constitution since 1948

Primarily thanks to the pervasiveness of armed conflict in Israel's experience, security-related issues have intruded on its national life far more than in other democracies. They have figured especially prominently in legal discourses seeking to reconcile defense requirements with the preservation of civil liberties. This essay surveys those discourses, offering a framework for their chronological analysis.

Israel's legislators have never themselves provided any such framework. True, they have occasionally enacted "Basic Laws" (thus far, 11) that, at some future date, might provide foundations for an integrated constitutional text that would specify rules and standards governing national security activity. But no such end is presently imminent. Few of the Basic Laws hitherto enacted relate to national security, and even they only partially cover that field. For the most part, therefore, Israel's national security constitution—i.e., the practices and procedures whereby the Government is legally authorized to initiate and oversee activities undertaken by the armed forces and other security services in the name of the State—is a non-formalized corpus. Overwhelmingly it has been fashioned, not on the basis of fundamental theoretical postulates concerning the ways to enhance security without undermining civil liberties, but pragmatically, by individual legislative and judicial responses to specific exigencies.¹

The piecemeal nature of Israel's responses to the security-democracy conundrum is not to imply that they have developed entirely haphazardly. On the contrary, from a synoptic perspective, developments in this area can be conceptualized on lines suggested by professors Oren Gross and Fionnuala Ni Aolain in their groundbreaking study Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge, 2006). Baldly summarized, this work argues that when the safety of the regime and/or state is endangered, by either human violence or natural disasters, democracies possess three options.

"Extra-legality"—In this mode, governments respond to crises by dispensing with conventional legal norms. The executive obtains the freedom of action it seeks by unilaterally discarding legal constraints and thereby creates an environment in which, where national security issues are concerned, law is effectively silenced.

"Accommodation"—This too acknowledges the exceptionality of national security requirements in emergencies but permits a more moderate response. Governments do not disregard normal legal procedures, but merely suspend them. For instance, they enact "emergency decrees", which curtail civil liberties solely for the duration of the crisis. Once it passes, they intend to re-instate regular legal standards.

"Business as usual"—In contrast to both "extra-legality" and "accommodation", this mode deliberately refrains from endowing national security emergencies with any unique legal status. Instead, it posits that crises, however acute, need not affect existing constitutional provisions, and with respect to human rights must never do so.

We suggest that the uniqueness of Israel's national security experience is that it exhibits a chronological progression through all three of these models of constitutional behavior.

1948–1963: THE PROMINENCE OF "EXTRA-LEGALITY"

Israel's adoption of an "extra-legal" paradigm during the War of Independence and first years of statehood is easily understood. Even after the 1949 Armistice agreements, Israel clearly confronted persistent military threats to its very existence. Hence, the paramountcy of security needs over every other consideration, including the preservation of the civil liberties guaranteed in the Declaration of Independence, was considered self-evident. The practical application of that conviction was facilitated by the legacy of emergency regulations inherited from the British Mandate, which endowed the executive branch with over 160 highly intrusive powers—including press censorship, house demolitions, curfews, and detention without trial. Most of those regulations, all infringements of civil rights, were immediately incorporated into Israeli law by article 11 of the Law and Administrative Ordinance enacted by the new state's Provisional Council on 19 May 1948, just four days after Independence. They were supplemented by additional "emergency" decrees every year until 1962, by which time "state security" considerations had been advanced as justifications for several more enactments of a similar nature. The most discriminatory of these legitimized both substantial transfers of property from Arab to Jewish...