Legal Transparency as a National Security Strategy

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By Yoni Eshpar
INSS – Military and Strategic Affairs Program

The act of taking initiative is considered the preferred modus operandi within the various spheres that shape and define the concept of Israel’s national security: on the battlefield and in diplomacy, as well as on the media front. Conventional wisdom within all these spheres is that one should not be dragged along by the force of events, nor should one ever allow an adversary to define the terms of the battle. The legal realm, however, would appear to be an exception to this rule.

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Although recognition of its importance has greatly increased in recent years, thinking on the subject remains limited to the defensive and reactive; in other words, thinking is limited to the question of how to furnish the political and operational echelon with professional advice and the proper means of defense against court petitions, lawsuits, commissions of inquiry, and other legal proceedings in Israel and abroad. These are important tasks, but is it the sum total of the law’s ability to contribute to security? What about a more comprehensive legal strategy that is more proactive and takes the initiative? What benefit, if any, would it have, and at what price? This article addresses these questions by reviewing the public legal campaign, unprecedented in form and scope, waged by the Obama administration throughout its first term.

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Yoni Eshpar is director of the Public Department at Gisha, an Israeli non-profit organization. The views presented in this article are the author’s alone.

This article was first published in Military & Strategic Affairs journal. Volume 5 issue 1.

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Legal Transparency as a National Security Strategy