Security vs. human rights; law vs. music

Ariel Bendor, a professor at Bar Ilan University’s law school, also writes music and lyrics and sings in a band. ARIEL BENDOR/YOUTUBE

You can tell a great deal about what challenges a democracy faces by the laws it makes.

It is not breaking news to point out that Israel is on near-constant alert against the threat of terrorism. And because – to continue not to break news – Israel is a democracy, not a dictatorship, and a democracy with a particular sensitivity to human rights at that, it is constantly defining and redefining the tradeoff between security and the methods it uses to attain that elusive goal.

“In Israel, there is a lot of legal regulation and court decisions about fighting terrorism and national security,” Professor Ariel Bendor said. “In the States, the courts don’t decide a lot of cases regarding fighting terrorism. It is a political question here.”

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Ariel Bendor

Dr. Bendor is well situated to know that. He is a professor of law at Bar Ilan University in Israel, and the head of the law school’s Center for Media and Law. He has argued many cases in front of the Israeli Supreme Court. This year, he is a distinguished visiting professor at the University of Maryland’s law school.

On March 17, Dr. Bendor will talk about those challenges at Temple Emanu-el of Closter. (See the box for more information.)

“In Israel, there are dozens of cases every year,” he continued. “In Israel, terrorism and fighting terrorism are part of day-to-day life. If Israel is to survive as a democracy, it cannot be out of the legal process.” The United States has the luxury of treating such philosophical decisions as the balance between security and the human rights of the people who might threaten that security as a political issue, to be decided by people whose right to govern is reexamined at every election. Israel does not.

Still, he said, “In Israel, the Supreme Court made a famous decision, that torture is not allowed. Even in the situation of a ticking bomb” – when the interrogators believe that calamity can be averted if and only if the suspect divulges the information that will allow the bomb to be disarmed, the fuse to remain unlit, the shot unfired, and that the only way to pry that information out of the suspect is to use force. “By the decision of the Supreme Court, you cannot,” he said. “The Shin Bet cannot, the general security services are not allowed to use torture.

“The decision was made in 1999, during the second intifada. Before that, the Shin Bet used heavy physical measures of interrogation, but the Israeli Supreme Court said that it could not be allowed.

“Another interesting problem is administrative detention,” Dr. Bendor went on. “Contrary to the United States, in Israel preventive detention can be done only with judicial review, and that judicial review should be at least every three months. So every three months, anyone who is put in jail by administrative arrest should be brought to the district court, which answers directly to the Supreme Court. Every three months, the court must decide if the preventive detention is justified.

“And there is no Guantanamo in Israel.

“But,” Dr. Bendor cautioned, “that is not because Israel is more a democracy than the United States. That’s absurd. It’s that the United States can be and can survive as a democracy” without the extra safeguards that the rules impose. Certainly, he agreed, were it not for the restraints imposed by the Supreme Court, the tilt toward security would unbalance and topple any concern about civil rights.

“About 20 percent of the Israeli population are Arabs,” he continued. “And of course Israel occupies the territories, in which there are settlers, but also a lot of Arabs live there. I don’t think it’s realistic to be a democracy without human rights in the territories. Israel has ruled there since 1967 – a lot of years. It is interesting that there are Israelis who are against the occupation, and they say that it is problematic when the Supreme Court takes cases from the occupied territories because, they say, that gives legitimacy to the occupation. But this is a political decision, not a legal one.”

Dr. Bendor is interested in the mixed-signal-studded intersection of the law and media, so he founded the logically named Center for Media and the Law at Bar Ilan four years ago. “This is one of the few centers in the world that focuses on the fascinating synergistic relationship between law and media,” he said. “The center is very active, and so far we have held dozens of conferences and public events, and initiated a series of studies and policy papers.” Guests there have included Israeli Supreme Court justices, editors of the leading Israeli newspapers, and senior Israeli legal commentators and reporters. “Within a short time, the center has become a major influential player in the field of law and media,” Dr. Bendor said.

Dr. Bendor’s specialty is constitutional and administrative law and criminal law. He also writes prolifically, both in Hebrew and in English. His Supreme Court appearances are on a wide range of subjects; in fact, in a few weeks he will return home briefly to present a case there. This case has nothing to do with terrorism, and everything to do with city planning, budgeting, and funding.

Is there anything else he would like readers in New Jersey to know?

“I am a musician,” he said, shifting gears, almost visibly shifting his persona as his suit morphed into an invisible leather jacket.

“I have recorded two CDs,” he said. What kind of music? “Rock. What else?”

“I play a little bit on the piano, and I sing, and all the lyrics and music are mine.

“I am mainly a law professor, but I also make music.”

Dr. Bendor is 51, and first learned to play music when he was 6 or 7. He gave music up when he reached adulthood, but it never quite let go of him, and he’d dabble. When his son, who is now 21, approached his bar mitzvah, Dr. Bendor said that he’d write a song for him, and sing it. He did, and loved it – and then dropped it again.

And then he picked it up later.

He released that song and others on one CD, followed eventually by another. He was backed by professional musicians. He released professionally and beautifully produced videos, which are posted on YouTube. “I am a serious person,” Dr. Bendor said. His CDs were released professionally, and they did well. Dr. Bendor’s story appealed to Israeli media, and he made the rounds of the country’s interview, news, and talk shows. How does Dr. Bendor reconcile playing rock in a band to arguing before the Supreme Court? “It’s the same profession,” he said. “Think about it.

“The similarities are what keep it knowable and the differences are what make it exciting,” he added.

Music is highly structured, and it has rules. So does legal writing. Both allow for a certain creativity, although certainly more is acceptable in writing music than in writing a brief. And both involve performing.

As is true for just about everything in life, including the debate between security and human rights that Dr. Bendor will address next week, the art is very much in the balance.

Information

Who: Professor Ariel Bendor What: Will address “The Balance Between Security and Human Rights in the War Against Terrorism” Where: Temple Emanu-El of Closter, 180 Piermont Road When: Tuesday, March 17, at 7:30 p.m. Why: Part of a series presented by the American Friends of Bar-Ilan University and sponsored by its New York region. How: The evening is free; light refreshments will be available, and there will be no fundraising. To reserve, please email info@templeemanu-el.com or call (201) 750-9997.