By Daphne Barak-Erez* —
When collecting information about possible terrorist attacks, national security agencies may have to choose between competing systems of implementation, all infringing individual rights. Should they collect information by indiscriminately wiretapping communications in the population at large or by implementing harsher means, such as investigations under arrest, against individuals known to be involved in terrorist activities? Assuming that both policy options, at least in certain cases, are equally effective, this question highlights the fact that many national security decisions entail distributive implications. This Article analyzes the centrality of distributive justice considerations for the understanding of national security law at a time that policy decisions on anti-terrorism measures can either take the form of indiscriminate large- scale infringements of individual rights, such as body-scans, or much more targeted forms, which place additional burdens on suspects. This choice, which had so far been overlooked, becomes more and more relevant as new technologies make it easier to apply methods of surveillance indiscriminately.
The focus on the choice between policies with different distributive implications cuts against the traditional understanding of national security law as based on two choices: allowing national security threats to continue unabated, which may result in a catastrophe ensuing from a terrorist attack, or violating rights through the government’s use of preventive measures designed to confront the threat. This pattern of analysis has obscured a fundamental question to the implementation of measures for preventing anti-terrorism: what is a just distribution of the resulting burdens?
This Article examines the hidden side of national security law by focusing on the choice between using harsh anti-terrorism measures on a selective basis, or using anti-terrorism measures that entail less harmful infringements of individual rights but affect much larger segments of the general population.
* Justice, Supreme Court of Israel. Formerly Stewart and Judy Colton Professor of Law and the Chair of Law and Security, Faculty of Law, Tel Aviv University. I thank the participants of the faculty workshops at Duke Law School, Virginia Law School and the Interdisciplinary Center, as well as Avichai Dorfman, David Enoch, Talia Fisher, Shimrit Itay, Roy Kreitner, Galit Raguan, Yuval Roitman, Paul Sass, Paul Stephen, Matt Waxman, and Ernie Weinrib for their helpful comments, and Ofra Bloch and Naomi Scheinerman for their research assistance.